Factor (2) Policy
43.In this instance, it is necessary to have regard both to the normal policy in respect of the imposition of costs orders made payable within a specified period of time before the end of the litigation as mentioned in Michael Wilson and to the specific position in IPEC, where such orders are the exception rather than the rule. I consider that the particular context of the normal costs position in IPEC reduces the overall weight to be given to the policy factor in favour of granting the order sought and rather weighs against making it.44.The underlying rationale for the costs position in IPEC may involve multiple considerations. It possibly involves a desire to avoid satellite applications such as the current request by the Claimants. 45.In any event, in her skeleton argument for the second CMC, the Claimants’ counsel suggested that: “The IPEC costs rules were designed to provide certainty, and to place litigants on an equal footing. It cannot have been the intention of the IPEC costs principles to put the Claimants in the situation in which they now find themselves. Both the Overriding Objective and the spirit of the IPEC regime strongly indicate that the costs order sought should be made unless this Court is prevented from doing so by the IPEC rules.”46.The order for which the Claimants have now applied would have the automatic consequence that if the Defendants did not comply the Defendants would lose the right to continue to defend the action. In my view, it is unlikely that this is the outcome envisaged by the IPEC costs rules which, to paraphrase the words of Ms Wickenden, cannot have had the intention of placing the Defendants in the situation in which they now find themselves.47.This factor weighs against making the order sought by the Claimants.