Where one party obtains an award of expenses in their favour, the procedure will involve arranging for an account of expenses to be prepared and lodged with the court for taxation (assessment by the Auditor of Court). This applies both when an award of expenses is made at the end of an action or when the court action is ongoing (interim awards).
In some cases, however, a party can apply for an interim payment of expenses before the taxation of the account and therefore before they have gone through the usual process set out in the rules of court.
In 2017, the Court of Session clarified the principles applicable in that court in Robert Kidd v Paul & Williamson LLP and another [2017] CSOH 134. Essentially, special circumstances had to exist in order for there to be a departure from the usual rule. In that case, these circumstances were the size of the sum due (circa £1 million), the complexity of the process of making up an account for that sum of money and the prejudice that the pursuer would have suffered if they had required to continue to litigate without access to the expenses to which they had been found entitled.
There has always been a question as to whether the same principles applied to proceedings in the Sheriff Court. That question was resolved recently in a personal injury case, Harkin v McNeil [2025] SC EDIN 84, in which the court was faced with an action for damages in which the pursuer sought payment of £50,000. The action settled shortly before proof and the defender was found liable to the pursuer in the expenses of the cause with an account to be lodged with the Auditor of Court for taxation.
There was some negotiation between the parties to attempt to avoid taxation, with the defender making a final offer of £30,000 but that was not acceptable to the pursuer. The pursuer was, however, keen to get their expenses quickly and sought an interim payment of £30,000 pending taxation given that this appeared to be a sum the defender was willing to pay. The defender opposed that motion and asked for the matter to go to the Auditor in the usual way.
The Sheriff explained that there was no material difference between the approach in the Court of Session and the Sheriff Court. All the cases suggested that in order for the court to depart from the usual rule, there had to be a basis for the court to do so. That might be described as a “special reason” or “sufficient reason” but there had to be a reason.
The Sheriff was not impressed by the primary reason advanced in this case, being that it would take a long time for the Auditor to tax the account (which is by no means a unique feature of this case). Further, in the course of argument it transpired that the pursuer was on a “no win, no fee” arrangement and so would suffer no prejudice as a consequence of that delay. It was a common feature of the Court of Session authorities that there was a direct impact on the party seeking the interim payment and that feature was not present here.
Accordingly, the Sheriff confirmed that practice in the Sheriff Court when it comes to interim payments of expenses is aligned with the Court of Session. The court is likely to take a cautious approach to granting this sort of motion and likely to take a conservative approach to the level of the interim payment being ordered, even if the motion is successful.
