Interim costs orders: a power and a presumption

In Crociani v Crociani [2014] JCA 095, the Court of Appeal ruled, for the first time, that it has the power to make an order for an interim payment on account of costs. As well as clarifying whether it had the power to make such an order, the court also discussed whether a presumption to do so exists as a matter of principle and suggested certain revisions to both the Court of Appeal (Civil) Rules 1964 and to the Royal Court Rules 2004.

The appellants (against whom the Court of Appeal had made an order for the costs arising out of an unsuccessful application for a stay of proceedings on the ground of forum non conveniens) argued that the Court of Appeal had no power to make an order for an interim payment on account of a liability for costs. The position in Jersey differed materially from that in England and Wales, in which the court has a wide discretion to order a payment on account under Rule 44.3(8) of the Civil Procedure Rules.

The Court of Appeal disagreed. While there is no statutory equivalent to Rule 44.3(8), it does not necessarily follow that Jersey’s Court of Appeal lacks the discretion to order a payment on account. Rather, the power to order an interim payment on account of costs arises under article 16 of the Court of Appeal (Jersey) Law 1961, which states that ‘the costs of and incidental to proceedings in the Court of Appeal…shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid’. The wording of article 16 and the discretion that it grants the Court of Appeal was wide enough to accommodate a power to make an interim order for costs on account…

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