Factor (3) All relevant circumstances
Article 6(1)48.The potential loss of the Defendants’ possibility to defend the action may engage Article 6(1) of the European Convention on Human Rights as mentioned in Michael Wilson and applied by Arnold J as he then was in Harb v Aziz [2017] EWHC 258 (Ch), at paragraph 25.49.That issue has not been raised here, nor was it raised during the second CMC. It appears not to have been in the contemplation of either party that the consequence of making the interim payment award sought by the Claimants could be the loss of the Defendants’ right to defend this action. This weighs to some extent against the making of the order sought by the Claimants, although I have in mind that strong evidence would ultimately be required to rely on Article 6(1) rights.Alternative means of enforcement50.There are alternative means to enforce the order (as with any money judgment). All of the potential options to enforce payment could then be considered in the round. This is not, in itself, a reason to refuse an ‘unless’ order in appropriate circumstances. However, given the way in which this application came about, and the surrounding circumstances, it is a factor which has some weight against making the order sought by the Claimants.Appropriateness of making a costs order payable before the conclusion of the proceedings – submissions51.The IPEC context militates against such an order, as noted above. During the second CMC, the Claimants’ submissions were directed 52.The Claimants’ overall position on the costs order, as summarised in their counsel’s skeleton argument, was that “… the court’s general discretion as to costs should be exercised in view of the Overriding Objective, including the need to ensure that parties are on an equal footing, to save expense, and to deal with the case in a manner proportionate to the parties’ financial positions”.53.There was no suggestion that the order might be inappropriate, nor was there any suggestion that it might lead to the Defendants being deprived of the right to defend the action or the trial being unnecessary.54.When the Defendants requested a direction that they be permitted to satisfy the interim payment order by instalments, the Claimants submitted that it was premature and insufficiently supported by evidence. There was no detailed consideration of the substance of the Defendants’ evidence as to their financial position. The order for an interim payment was accompanied by the Claimants’ agreement (through counsel) to undertake to repay any costs to any extent necessary at the conclusion of the trial. This implied strongly that the costs order was not an impediment to trial and that the undertaking would ultimately be relevant.55.When the Claimants’ counsel was asked during the hearing if any authorities dealing with the relevant principles applying to making orders that costs be paid in instalments came to mind in the light of the Defendants’ request at the hearing for such a direction, none was mentioned. This may have been because the Defendants had asked for that direction only orally and thus the issue had not been considered. However, the Defendants’ lack of means was raised explicitly in the Defendants’ evidence (albeit that evidence was disputed) and the risk of insufficient money ultimately being available to pay outstanding costs after trial was put forward by the Claimants as a reason to grant the order sought.56.The Defendants made no submissions at the second CMC other than factual submissions.57.Taken in the round, the submissions made during the hearing leading up to the making of the interim payment order addressed only the IPEC specific aspects of (exceptionally) making a costs order payable before the conclusion of the proceedings.58.When the Defendants applied using form N245 to have their financial position considered and seeking an order for payment by instalment, the Claimants resisted those applications primarily on procedural grounds including that the applications were premature as no warrant of execution or instalment order had been made.Other relevant issues59.In support of this application, the Claimants now state that the Defendants’ applications for an instalments order using form N245 was an attempt to circumvent the Court’s previous ruling, that the Defendants’ evidence was substantively considered and that it was dismissed twice.60.As discussed above, no substantive consideration of the Defendants’ evidence took place during the second CMC. The Claimants questioned its relevance and adequacy, but the underlying factual issues were not discussed, other than very briefly.61.As to the Defendants’ subsequent form N245 applications, those were dismissed as follows:“I have reviewed the applications made on form N245 by the Third, Fourth, Fifth and Eighth Defendants and the Claimants’ responses to those applications.The possibility of ordering payments by instalments was raised by the Defendants during the hearing on 2 February.Having concluded that an interim payment was appropriate, I decided not to make an order that it should be payable in instalments.Although the order following the hearing has not yet been drawn up, any request to reconsider the decisions taken during that hearing would be appropriate only in exceptional circumstances; reconsideration in other circumstances would undermine the appeals process.No exceptional circumstances have been raised, and no material change of circumstances has been identified. To the extent that the applications seek a reconsideration of the costs order made at the hearing on 2 February, they are therefore inappropriate.I understand that no enforcement steps have yet been taken. To the extent that the applications are intended to seek to vary an order made as part of any enforcement process they are premature.In the circumstances, no hearing is necessary and would merely increase the burdens on the parties and the Court. The applications are dismissed.”62.As previously, the Claimants had resisted any substantive consideration of the Defendants’ evidence and none was undertaken.63.I do not accept the Claimants’ suggestion that the N245 applications were an attempt to abuse the process of the Court or to circumvent the interim payment order. A more plausible reason for the Defendants’ conduct is that, as unrepresented litigants, they misunderstood the purpose of form N245 and that their applications were simply premature, as recorded in the brief Judgment of 1 March (above). This reflects Mrs Claire Quinn’s sixth witness statement about her lack of familiarity with the Court process and the fact that the applications were made on the same day as the hearing in the CMC. While a lack of familiarity with procedure does not excuse failures to do what is required, this is not such a situation. Such applications might have a legitimate place as part of an enforcement process, as was noted by the Claimants in their response to the applications.64.In my view, the Defendants’ premature use of the forms cannot be assumed to be an abuse of process, nor to have been an attempt to circumvent the interim payment order: it is more likely to have been a misuse of the forms owing to a misunderstanding of the correct process.