HT-2022-000255 - [2025] EWHC 2030 (TCC)

The last issue concerns Matière’s claim for a payment on account of its costs pursuant to CPR 44.2(8). By way of principal sum, it seeks 95% of the total amount of its cost budget amounting to £935,000. In support of this, Mr Lewis points to four matters which I deal with in turn.

Firstly, he submits that the cost budget was approved so it is unlikely that Matière would recover significantly less than that amount. I accept that is an important factor because the Court will not depart from the approved budget unless satisfied there is a good reason to do so.

Secondly, he points to the claim for indemnity costs and notes that Matière’s actual costs were in excess of £1.8m. The claim for indemnity costs is no longer relevant for the reasons given but the amount incurred may, perhaps, be relevant to the level of confidence that Matière will not get less, or much less, than the budgeted amount.

Thirdly, he points out that the case was only subject to cost budgeting because the counterclaim had been pleaded at £5m. Had it been pleaded in the sum ultimately claimed, £19m, these proceedings would have fallen outside the cost budgeting regime. Whilst that may be so, it is difficult to see how it impacts the amount that Matière is now likely to recover on detailed assessment.

Fourthly, he says that disclosure was more extensive than envisaged at the CCMC. ABM refused an invitation to agree an increase in the budget to reflect this. A request for a split trial of liability and quantum, which would have saved costs, was refused both by ABM and then the Judge. I do not see how these points materially assist in setting the level of the payment on account of costs.

Mr Lixenberg accepted that, if the amount is limited to that set out in the cost budget, a percentage of 85 to 90% would be appropriate for standard costs and that 95% would not be unreasonable if the costs were being assessed on an indemnity basis.

I conclude that there should be a payment on account of costs in the sum of 90% of the budgeted costs, which I consider is a reasonable payment in all the circumstances.

Matière claims interest on those costs as part of the sum applied for by way of payment on account. Taking a broad brush, which accounts for the relative proportion of costs incurred in respect of both claim and counterclaim, I conclude that interest on costs should accrue at the rate of 2% over base rate.