On 21 June 2016, a Judge, in handing down judgment at the hearing, ordered the claimant to pay the defendant’s costs. When counsel for both parties were subsequently seeking to agree the terms of the order, counsel for the defendant sought to include provision for payment on account. The claimant objected to such provision being included in the order on the basis that the request for the inclusion of any such provision should have been made at the hearing when the order was made. There were other minor issues considered and dismissed by the Judge but, as he stated in his judgment: “The substantial point, as it seems to me, is whether a request for payment on account can only be made at the hearing itself. If so, then, once the parties come to draw up the order for the court’s approval, it is too late to argue for its inclusion.”
However, the judge went on to clarify that, while the general rule is that an order is effective from the moment it is made by the court, the court still has the power to alter its judgment or order at any time until it is entered and perfected by sealing, and that such power is not limited to exceptional circumstances. The judge went on to order a payment to be made on account within 14 days.
This ruling demonstrates the court exercising its powers in a measured and pragmatic way in that, if it is appropriate for provision to be made in an order for a party to make a payment on account, it would conversely be inappropriate to prevent such a provision being included simply because its inclusion was not requested at the hearing. It is often the case that subsequent to a hearing, counsel will agree between themselves certain tweaks to an order, particularly on points in relation to costs, before it is sealed or revert to the judge for clarification on certain points and taking a common sense approach to this can keep costs down. It is also a reminder that parties should not resign themselves to being unable to have appropriate provisions included in an order even if requests are not made at a hearing. If after the hearing but before the order is sealed, requests are made and the court considers the requested provisions can and should be included, such requests may be accommodated.
Aliston Albert Ashman v Clyde Caulson Thomas [2016] EWHC 1810 (Ch)
