HT-2020-000448 - [2024] EWHC 2025 (TCC)

I decline the invitation from Mr Cogley, in circumstances where I have refused to permit the amendment to claim 8% over base as interest under the 1998 Act, nevertheless to allow a claim for interest at the same rate under section 35A of the 1981 Act. There is no basis upon which it would be remotely appropriate to do so in relation to the non-payment of legitimately disputed invoices.

The remaining question is whether the rate should be 2% (as contended for by TCS) or 1% (as contended for by DBS). DBS contends that in relation to commercial claimants, the general presumption will be that they would have borrowed less and so the court will have regard to the rate at which persons with the general attributes of the claimant could have borrowed. This is, DBS contends, likely to be a percentage over base rate and may be higher for small businesses than for first class borrowers.

TCS contends that a rate of 2% has been held to reflect normal practice in the TCC (Fluor v Shanghai Zhenhua Heavy Industry Co. Ltd [2018] EWHC 490 (TCC) at [56]).

I consider that 2% over base is consistent with general practice in the TCC and, as indicated at 16AI.7 of the White Book, there are a number of authorities which demonstrate that this approach is common.

As to the amount upon which pre-judgment interest is to be awarded and from what date, I consider this further below in the context of interest on the CCN 041 Counterclaim.