In the landscape of civil litigation, the recovery of legal costs is a matter of significant concern, particularly for the successful party. One provision that regularly arises in this context is CPR 44.2(8), which empowers the courts to order payments on account of costs prior to the conclusion of formal detailed assessment proceedings. Understanding this rule is essential for both the receiving party and the paying party, as it can materially affect cash flow, litigation strategy, and post-trial negotiations.

This article examines CPR 44.2(8), the court’s discretion in applying it, and the factors influencing the amount ordered. It also explored how this rule applies across the High Court, County Courts, and the Court of Appeal, providing practical guidance for solicitors, litigants, and legal costs professionals.

What is CPR 44.2(8)?

CPR 44.2(8) provides that:

“Where the court orders a party to pay costs subject to detailed assessment, it will usually order that party to pay on account of costs, before the costs are assessed.”

In simple terms, when the court orders a party to pay costs to another party, but the exact amount is to be determined through a detailed assessment of costs, the court will generally also require the paying party to make an interim payment – known as a payment on account of costs.

This serves to mitigate the financial burden on the receiving party, who may otherwise be left out of pocket for an extended period while the costs are scrutinised. The rule is a recognition of the general rule that a successful party is entitled to be reimbursed for reasonable and proportionate legal costs, subject to judicial oversight.

The Court’s Discretion and the Presumption in Favour

Although the wording of CPR 44.2(8) includes the term “usually,” the courts have made it clear that there is a strong presumption in favour of ordering a payment on account. However, the provision still leaves room for judicial discretion, and the court will consider the specific circumstances of the case before making an order.

Among the factors the court may evaluate are:

• The nature and conduct of the litigation
• The steps taken in the proceedings
• Whether the receiving party is likely to recover the full costs claimed
• The clarity and credibility of any costs schedules or budgets provided
• The extent to which the outcome of the proceedings reflects overall success

Unless there is a good reason to depart from the default position, the court is likely to make an award in line with CPR 44.3(8).

When CPR 44.2(8) is Typically Invoked

The rule applies whenever a party is ordered to pay costs that are not summarily assessed at the time of the judgment. It is frequently encountered in:

• Multi-track trials
• Complex interim applications
• Appeals to the Court of Appeal
• Judicial review
• Commercial disputes in the High Court

In each of these contexts, the court orders a party to pay the other party’s costs but reserves the final determination to a future detailed assessment. To prevent injustice and delay, a payment on account can be ordered immediately to reflect a reasonable estimate of the likely costs entitlement.

Standard Basis vs Indemnity Basis

The standard basis of costs assessment will generally apply unless the court expressly orders otherwise under this basis. Only those costs which are reasonable and proportionate to the matters in issue will be recoverable. Any doubt is resolved in favour of the paying party.

In contrast, under the indemnity, the court is more generous to the receiving party, allowing all costs except those which are unreasonably incurred. Doubts are resolved in the receiving party’s favour.

Where the costs are to be assessed on the standard basis, the court may adopt a cautious approach when determining the amount of any payment on account of costs, in recognition that some item may later be disallowed. Nevertheless, the order will aim to reflect a fair estimate of the costs incurred to date.

Calculating the Payment: What the Court Considers

The court’s role under CPR 44.2(8) is not to conduct a mini assessment of the costs but rather to arrive at a reasonable interim figure based on the evidence available. The amount ordered will usually reflect:

• The costs incurred up to the date of the costs order
• The skill, effort, and specialised knowledge demonstrated by the receiving party’s legal team
• The complexity and duration of the matter
• The stage at which the settlement or judgment occurred
• The extent of success achieved
• Any agreed or approved costs budgets

In practice, the amount awarded can range from 50% to 90% of the estimated recoverable costs, depending on the court’s certainty about the eventual outcome of the assessment proceedings.

Drafting and Presenting the Application

An application under CPR 44.2(8) can be made orally at the hearing where judgment is given or submitted in writing afterwards. However, particularly in more complex matters or where significant sums are at stake, a written application is advisable.

To strengthen the application, the receiving party should provide:

• A clear schedule of the estimated costs
• A short explanation of how those costs were incurred
• Reference to any existing costs budgets
• Submissions on proportionality and reasonableness
• Relevant case law in support

For litigants and solicitors, working with a costs draftsman at this stage can ensure that the submission is both persuasive and procedurally compliant.

Strategic Considerations

For the receiving party, a timely application under CPR 44.2(8) offers several advantages:

• Provides earlier cash flow relief
• Reduces financial risk during the assessment process
• Enhances settlement leverage with the paying party
• May discourage dilatory tactics or unmeritorious disputes over costs

Conversely, the paying party should be proactive in scrutinising any such application and, if necessary, contest the amount sought by demonstrating likely reductions during assessment or by identifying issues of conduct or proportionality.

Application Across Court Tiers

The principles of CPR 44.2(8) apply consistently across the County Courts, High Court, and Court of Appeal. However, the practice may vary slightly in terms of procedure, judicial willingness to entertain oral submissions, and expectations regarding documentary support.

In higher courts, such as the Commercial Court or Technology and Construction Court, judges often expect detailed, costed submissions from both sides. In contrast, County Courts may deal with such matters more summarily unless the amounts in question are substantial.

In Summary

CPR 44.2(8) is a practical and powerful provision that enables the courts to maintain fairness and efficiency in the allocation of legal costs. By facilitating a payment on account of costs before the conclusion of a detailed assessment, the rule helps to ensure that the receiving party – usually the successful party – is not unfairly prejudiced by delays in recovering costs.

The rule rests on the court’s discretion, but the general rule is in favour of making such an order where appropriate. The amount will be guided by the standard basis the court applies, the complexities of the case, and the costs incurred to date, including the skill, effort and specialised knowledge involved.

Whether you are a solicitor, client, or legal professional, understanding and effectively utilising CPR 44.2(8) can make a material difference in the litigation process. Engaging a knowledgeable costs draftsman at the right stage ensures that your rights are protected and your recoverable costs maximised.

How Greener Costs Can Help

At Greener Costs, we specialise in all aspects of legal costs, including applications under CPR 44.2(8). Whether you’re a solicitor, firm, or litigant, we provide clear, strategic advice to help you secure prompt and fair payments on account of costs.

Our expert team can:

• Draft strong, persuasive applications
• Prepare compliant costs schedules and budgets
• Advise on likely recovery and strategy
• Support you through assessment proceedings

We work across the Country Courts, High Court, and Court of Appeal, helping clients recover costs efficiently and with confidence.

Get in touch with Greener Costs today by calling 01204 263047 or emailing info@greenercosts.co.uk to ensure your costs are properly presented – and properly recovered.