No payment on account

Dyson Appliances Ltd v Hoover Ltd (4) (ChD TLR 18 March)

The claimant obtained judgment for damages to be assessed for infringement of its registered patent by the defendant. Two weeks before the hearing of an enquiry into damages, the claimant accepted a payment into court of £4m. The payment in was more advantageous than the claimant’s own Part 36 offer and the judge awarded the claimant the cost of the enquiry to be assessed on the standard basis. Before the costs had been assessed, the claimant applied to another judge for an order under CPR rule 44.3(8) that an amount be paid on account of its costs before they were assessed. The application was opposed on the grounds that because the Court had not had the benefit of hearing the full trial or of hearing the enquiry, there was no normal rule applicable and the Court was ill-placed to make any order for an interim payment. The Court agreed, saying that it had to exercise particular caution when invited to make an interim payment in these circumstances, because the judge was blind to the issues between the parties and the sums of money in dispute were considerable. It was important to bear in mind that the costs judge was empowered under CPR rule 47.15 to issue an interim costs certificate at any time after the receiving party had filed a request for a detailed assessment hearing. This provision operated on the basis that the costs judge’s power to order interim costs had been preceded by steps placing him in the position to make an accurate assessment and be able to decide whether an interim payment was appropriate and, if so, how much it should be.