For many years this has been a bone of contention, with a large portion of Defendants and in particular the NHS, either failing to or refusing to provide the Claimant with a payment on account of costs.
For many of our clients it is a priority to procure a payment on account so that disbursements can be discharged and to enable them to manage their own cash flow efficiently.
CPR 47.16 provides:
(1) The court may at any time after the receiving party has filed a request for a detailed assessment hearing –
(a) issue an interim costs certificate for such sum as it considers appropriate; or
(b) amend or cancel an interim certificate.
In one of my recent cases where the Defendant had, on repeated occasions, refused to provide a payment on account, the Claimant’s Application was filed with the Court after a request for Detailed Assessment.
Within their submissions, the Defendant attempted to rely upon the case of Gameson –v- Stoke on Trent NHS Primary Trust 2014 in an attempt to persuade the Court to not exercise its discretion. We successfully argued that the authority could be easily distinguished on various grounds:-
- The Claimant in Gameson had filed their Application for a Payment on account prior to their request for Detailed Assessment and therefore the Application was held to be premature. It was not the case in our matter
- Gameson Judgment was given on the basis that Provisional Assessments were dealt with in Hull County Court “relatively quickly”. In our case, it was 6 months from the date of our request for Provisional Assessment to the date the Court had set the Provisional Assessment to be undertaken – this could not be considered as “relatively quickly”
- In Gameson, the Provisional Assessment was due to take place one month following the Application Hearing, which the Judge stated “it makes nonsense of the new provisional assessment procedure if the assessment is possibly delayed or the parties and court become embroiled in satellite litigation over an interim costs orders”. In our case, the Provisional Assessment was listed 10 weeks after the Application Hearing.
Whilst in an ideal world, Provisional Assessments would take place within 6 weeks of filing the requisite paperwork, I think we can all agree, that in reality this just is not the case.
More often than not, Defendants are refusing to release payments on account on the basis that “the matter may be capable of acceptance and if not, can proceed quickly to a Provisional Assessment.” I think the flaw in this argument is clearly the use of the words “may” and “can” as in this particular instance, neither has occurred, which allowed the Court to award the Claimant the requested payment on account.