EE Limited v Virgin Mobile Telecoms Limited

Mrs Justice Joanna Smith Wednesday, 27 September 2023 ( 13:05 pm) Ruling by MRS JUSTICE JOANNA SMITH

1. I must now deal with an application for an interim payment on account to be made by the claimant to the defendant in relation to both the costs of the application and the costs of the action pursuant to CPR rule 44.2(8).

2. An interim payment will generally be ordered unless there is "a good reason not to do so" and that payment must reflect a “reasonable sum” which is determined by estimating the likely level of the party’s recovery, subject to an appropriate margin for error: see Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm) . It ought not to be more than might be recovered on a detailed assessment.

3. I am going to take a broad brush approach to this and a rather more cautious one than I might ordinarily adopt in circumstances where a number of criticisms have been raised by the claimant in relation to the defendant's costs and where I have already made a decision in which I have identified a need for increased scrutiny by reason of those criticisms.

4. Doing the best I can and having regard to the overriding objective, it seems to me that a fair and reasonable interim payment would be £400,000, which is roughly 50% of the total costs that I am told have been incurred by the defendant in relation to both the application and the proceedings of £804,088.

5. I will order an interim payment of £400,000 to be made within 14 days.

6. I should add that there was some debate about whether the figure of 804,088 should properly include the costs of today, but I have no intention of having a separate debate as to the costs of today. I accept Mr Zellick's submission that the costs of today form part of the costs of the application.