Ashman v Thomas  EWHC 1810 (Ch) (19 July 2016)
On 21 June 2016 Master Matthews gave judgment extempore in preliminary issues which he had tried and awarded the costs of those issues to the Defendant. In seeking to agree the terms of the Order, the Defendant sought a payment on account of costs. The Defendant served a costs schedule in the sum of £48,647.70. The Claimant resisted the order for a payment on account of costs and the parties filed written submissions. The Claimant submitted that the payment on account should have been sought at the time the costs order was made or alternatively an interim costs certificate sought at the appropriate time. The Claimant further submitted that it was inappropriate to deal with this by way of written submissions and that the Defendant failed to serve the costs schedule 24 hours before the hearing.
The Master ruled that it was appropriate to deal with a payment on account by written submissions in an appropriate case and that the failure to serve the costs schedule before the hearing was not fatal as Section 9.5 of PD44 concerned summary assessments. The point of substance was whether a request for a payment can only be made at the hearing itself and thus when drawing the Order for approval, it is too late to argue for its inclusion.
Whilst an Order takes effect from when it is made and not when it is entered and sealed, the Court retains the power to alter its judgment or order at any time until it is entered and perfected by sealing. Accordingly there is no objection in principle to considering the Defendant’s request for a payment on account of costs after the hearing but before the order is sealed. The sum of £17,500 was ordered.
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Where does this leave applications made after the order for a detailed assessment of costs but before the entitlement to an interim costs certificate? First instance decisions have been reported of the Court ruling that it does not have jurisdiction to order a payment on account of costs after the order for detailed assessment and before the entitlement to an interim costs certificate.