KB-2021-000741 - [2025] EWHC 2257 (KB)

The Represented Claimants seek 90% of the budgeted costs on the basis of an award of indemnity costs. I have not ordered indemnity costs. Nonetheless, it is appropriate to grant a higher percentage than the usual in a case where costs have been budgeted. That is because the Court is entitled to assume that a large percentage of the approved cost budget will be recoverable. The relevant provision is CPR 44.28 which provides where the court orders a party to pay costs “subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.” Even in cases where the order is for cost to be paid on the standard basis, the courts have ordered a payment on account of 90% of an approved costs budget: see MacInnes v Gross 2017 EWHC 127 (QB) and Sheeran v Chokri [2022] EWHC 1528 (Ch). In the latter case, Zacaroli J (as he then was) said at [41]:

“That is because on a detailed assessment the court will not depart from an agreed or approved budget unless satisfied that there is good reason to do so. I propose to adopt the same approach taken by Birss J in Thomas Pink Ltd v Victoria's Secret UK Ltd [2014] EWHC 3258 (Ch) and, taking into account the vagaries of litigation and the possibility of at least some departure on detailed assessment, I will order 90% of those cost which were included in the agreed budget as estimates. That comes to the sum of £810,000.”

My provisional view is to order a large payment on account of costs. It should contain a reduction to take into account that just under £13,000 of the costs may be attributed to the Unrepresented Claimants. In the event that JBL wish to persuade the Court to take a different view, they may do so in a very brief submission. I have in mind at the moment a payment on account of 85% of the budgeted costs. Since the handing down of this judgment in draft, the parties have accepted that the payment on account should be by reference to 85% of the budgeted costs, removing such costs as are attributable to the Unrepresented Claimants, but there are issues which may arise as to a stay which have not yet been resolved.