Split Trial? Get that wording correct regarding costs!

In our area of work, we often deal with costs arising from a liability agreement, and there was a good reminder recently from Costs Judge Leonard in ABA v University Hospitals Coventry and Warwickshire NHS Trust [2022] EWHC B4 (Costs) that the wording in the Order must be correct.

This case related to a split trial in which there was judgment in the Claimant’s favour.  The Consent Order stated:

“the Defendant do pay the Claimant’s costs of and incidental to the issue of liability on the standard basis such costs to be the subject of a detailed assessment, if not agreed…”

The Claimant commenced detailed assessment proceedings and in response, the Defendant applied for an Order stating that the Notice of Commencement (N252) be set aside as it was premature.

Costs Judge Leonard found in the Defendant’s favour, in that, save for an order for immediate detailed assessment, the costs of any preliminary issue cannot be assessed until the conclusion of the proceedings as a whole.

This is a reminder that the costs can be assessed once the judgment or agreement has been made, but the wording of the costs order must allow for this, otherwise the Receiving Party has to wait until the conclusion of the case.

There was a bit of good news for the Receiving Party however, in that interest was to accrue on those costs at 8% per annum, so it was of mutual interest to either settle these costs or make a substantial interim payment.

For any assistance with this, please do not hesitate to contact Tom Brocklebank here.


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