Santander UK PLC v CCP Graduate School Limited [2025] EWHC 1351 (KB)

[2025] EWHC 1351 (KB)Case No KA-2024-000063
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ON APPEAL FROM MASTER BROWN
KB-2022-003539
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 June 2025
Before
THE HONOURABLE MRS JUSTICE EADY DBE
Between
SANTANDER UK PLCAppellantCCP GRADUATE SCHOOL LIMITEDRespondent
Alexia Knight (instructed by Addleshaw Goddard LLP) for AppellantRuhi Sethi-Smith (instructed by Saracens Solicitors) for RespondentHearing Hearing date: 30 April 2025Draft Judgment circulated to the parties: 2 May 2025
Approved JudgmentThis judgment was handed down remotely at 2:00pm on 3 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This matter comes before me to consider various consequential issues, largely relating to the question of costs, arising from my order of 25 March 2025. For consistency, I will continue to refer to the parties by name: the appellant is thus “Santander”, the respondent “CCP”. I am concerned with an application by CCP, issued on 1 April 2025, for my order to be varied to remove the provision for an interim costs award and, more generally, for a stay in relation to costs pending the determination of CCP’s application for permission to appeal to the Court of Appeal.[2]In order to enable this application to be addressed without undue delay, the hearing took place before me remotely by Teams. Given other commitments, at the end of the hearing I indicated that I would provide my decision in writing.

The relevant procedural history

[3]By my judgment in this matter, handed down on 25 March 2025, I upheld Santander’s appeal against the decision of Master Brown dismissing its application for strike out/summary judgment in respect of CCP’s claim in the underlying proceedings.[4]Master Brown had allowed a similar application by the then first defendant, National Westminster Bank plc (“NatWest”), and had made an order that CCP should pay NatWest’s costs, summarily assessed in the total amount of £75,572.18 (including VAT) (a sum which is agreed to have amounted to 87.65 per cent of NatWest’s claimed costs). As for Santander’s application, although this had been allowed insofar as CCP’s case had been pursued as a “Quincecare type claim”, the Master had permitted CCP to amend its particulars of claim so as to put its case on the basis of a duty of retrieval and the application for strike out/summary judgment was refused in this regard. Although further refusing Santander’s application for permission to appeal on the question of CCP’s amendment, the Master gave permission on the duty of retrieval point. In relation to costs, the Master ordered that Santander should pay a third of CCP’s costs (summarily assessed as a total sum of £36,000), an apportionment that reflected the partial success of the application and the fact that CCP had made a late amendment of its claim.[5]Santander’s appeal was listed for hearing before me on 27 February 2025, with judgment being reserved. In accordance with standard practice, the draft judgment was then circulated to the parties on 12 March 2025, under an embargo notice that made clear that the draft was being provided:
“... to the parties and their representatives ... to be used to enable the parties to make suggestions for the correction of errors, prepare submissions on consequential matters and draft orders and to prepare themselves for the publication of the judgment.”
[6]In the final paragraph of the judgment, it was stated:
“53. This judgment having been circulated to the parties and their legal representatives in draft form in advance of handing down, the parties are directed to file an agreed draft minute of order (or, in the absence of agreement, a draft minute of order that highlights any points in dispute) at least two working days before the date fixed for the handing down of judgment. Should either party seek to make any further applications consequential upon my decision herein, such application, together with concise written submissions in support, should also be filed and served at least two working days before the date of hand down.”
[7]Typographical corrections were sent to my clerk by both parties on 17 March 2025. Thereafter, the handing down of the judgment was listed for 10.30 am on Tuesday 25 March 2025; the parties were notified of this by email of 19 March 2015.[8]On 17 March 2025, Santander had also emailed a draft order to those acting for CCP, which included the following provisions:(1) That, within 14 days of the date of the court’s order, CCP should pay Santander’s costs of the appeal on the standard basis, as summarily assessed by the court (paragraph 4)).(2) That CCP should pay Santander’s costs of the claim on the standard basis, to be the subject of detailed assessment (if not agreed) (paragraph 5)).(3) That, within 14 days of the date of the court’s order, CCP should make an interim payment in the sum of £117,000 (inclusive of VAT), that being 75 per cent of Santander’s costs of the claim (paragraph 6)).(4) That, also within 14 days of the date of the court’s order, CCP should repay to Santander the £12,000 previously paid pursuant to the order of the Master (paragraph 7)).[9]At 9.29 am on Friday 21 March 2025, counsel for Santander emailed the court, attaching both the draft order, as previously sent to CCP on 17 March, and short written submissions in support. At the outset of the drafting of that email, Santander had still not received any substantive response to its draft order from CCP; during the course of drafting of that email, an annotated version of the draft order was forwarded by those acting for CCP, which indicated that CCP sought:(1) a hearing on consequential matters;(2) permission to appeal;(3) a stay on costs and any enforcement of costs. As no details had been provided at that stage, in a post-script to the email Santander indicated its resistance to these points in general terms.[10]At 9.37 am, those acting for CCP forwarded the annotated draft order to the court, which expressly took issue with paragraphs 6) and 7) and sought a stay of any costs liabilities pending determination of the application for permission to appeal. At 9:51 am, short written submissions were also forwarded for CCP, setting out the bases on which CCP sought permission to appeal and a stay in relation to any costs orders (or enforcement of any costs orders) pending the determination of its appeal. CCP’s annotations to the draft order did not seek to raise any issues as to the costs claimed by Santander, but did:(i) seek a consequentials hearing, and(ii) made clear that CCP sought a stay of all costs liabilities pending determination of its appeal.[11]Having considered the drafts of the proposed order, and the parties’ respective submissions, my order of 25 March 2025 provided (relevantly):(1) That CCP’s applications for permission to appeal and for a stay in relation to costs were refused (paragraph 4)). As is now common ground, as this would be a second appeal, the application for permission could only be made to the Court of Appeal (CPR 52.7(1)); my order should not have included any decision on CCP’s application and paragraph 4) should be varied accordingly.(2) That CCP should pay Santander’s costs of the claim, including the costs of the appeal, on the standard basis, to be assessed if not agreed (paragraph 6)).(3) That, within 35 days of the date of the order, CCP should make an interim payment to Santander in the sum of £170,039.01 (inclusive of VAT), which represented 75 per cent of Santander’s costs of the claim (including the costs of the appeal) (paragraph 7)).(4) Also within 35 days of the date of the order, CCP should repay the sum of £12,000 to Santander, previously paid pursuant to the order of Master Brown (paragraph 8)).[12]In making my order, I had declined Santander’s request that I summarily assess the costs of the appeal and make an immediate award (to be paid within 14 days) in respect of those assessed costs. Having taken the view that all costs should be the subject of a detailed assessment, I was, however, prepared to make an interim award of 75 per cent of the total costs claimed (as reflected by paragraph 7) of the order).[13]By application notice issued 1 April 2025, CCP applied for that order to be varied so as to remove paragraph 7) (the interim costs payment), and to include provision for costs to be stayed pending determination of its application for permission to appeal; that application was supported by a statement from CCP’s director, Mr Dan Pathirana. In his statement, Mr Pathirana argued that the interim costs award had been made without sufficient scrutiny of Santander’s costs schedule, which he contended was excessive; submitting that enforcement of the interim costs order would cause undue hardship and stifle the appeal process (albeit no evidence was provided of CCP’s means in this regard).[14]By order of 1 April 2025, I directed that CCP’s application would be listed before me at a subsequent hearing (ultimately listed for 30 April 2025), allowing that any further evidence relied on by CCP was to be filed and served by 7 April 2025. CCP did not seek to rely on any further evidence but a statement was served by Mr Richard Clayton, solicitor for Santander, who exhibited a copy of CCP’s latest accounts (filed on 31 July 2024), which demonstrated that, as at 31 October 2023 CCP had total net assets of £446,930.[15]During the course of the hearing on 30 April 2025, further documents were emailed to the court on behalf of CCP, which showed that an application for permission to appeal had been filed with the Court of Appeal on 15 April 2025, and that (subject to my decision on CCP’s application to vary) this included an application for a stay of execution in respect of costs.

CCP’s application to vary and submissions in support

[16]For CCP it is explained that, prior to the handing down of the judgment on 25 March 2025, it had made no submissions in respect of costs as it had (reasonably) understood that it had not been invited to do so. As such, it contends that the court’s order ought to be viewed as having been made under CPR 3.3(4) (and thus susceptible to variation on application pursuant to CPR 3.3(5)), alternatively, that the court was able to entertain CCP’s prompt application to vary the order pursuant to CPR 3.1(7) (see Tibbles v SIG plc [2021] EWCA Civ 518).[17]In the present case, CCP seeks to argue that no interim costs award should be made given:(i) the likelihood of a successful appeal and the risk that this would be stifled or significantly prejudiced by such an award;(ii) its more limited means compared to Santander;(iii) the fact that it had been the victim of an authorised push payment (“APP”) fraud conducted by a customer of Santander. To the extent it was considered appropriate to make such an award, it was contended that the court had been wrong to make an award higher than the sum of £117,000 (as claimed at paragraph 6) of Santander’s draft order) and, in any event, that any such award should be made in a sum “much lower than 75%”. In support of this submission, CCP argues that the overall amount claimed by Santander was disproportionate to the sum in dispute (something in the region of £415,000.00), and was significantly higher than CCP’s costs (£62,329.00 (although Santander would wish me to point out that CCP’s total costs have been put in the sum of £74,179.00). More specifically, CCP says there are issues with duplication of fee-earner involvement and as to the time spent on documentation, attendances on the client and others (including on the former co-defendant).[18]More generally, CCP contends that any costs order should be stayed pending the determination of its appeal, arguing:(i) its appeal will be stifled if a costs order is immediately enforceable;(ii) Santander is a well-resourced bank and will suffer no detriment from a stay;(iii) the claim arises from an APP fraud carried out by a customer of Santander.[19]In oral submissions, Ms Sethi-Smith acknowledged that CCP had not filed any “specific evidence” to demonstrate that it would be significantly prejudiced in seeking to pursue an appeal by the making of an interim costs award and/or by the absence of any stay on costs; she contended, however, that the accounts put into evidence by Santander reflected CCP’s capital assets and reserves (as at 31 October 2023), not the cash that might be available to the company to support its appeal.

Santander’s position

[20]For Santander, it is pointed out that the subject of costs (and the making of an interim award) had been expressly raised in the draft order it had sent to CCP on 17 March 2025 (which simply applied the CPR). Moreover, the amount of costs claimed was clear; a costs schedule had been filed in advance of the appeal hearing (CCP had received four updated schedules during the course of the proceedings) and no issues had been raised with the sums claimed. Even now, no good reason had been identified as to why an interim award should not be made pursuant to CPR 44.2(8). Equally, no basis had been identified as to why a stay should be imposed. Notwithstanding being afforded the opportunity to do so, CCP had provided no evidence that its proposed appeal would be stifled by the interim award and by the refusal of a stay. Further, to the extent that it might succeed on any appeal, there was no risk that CCP would be unable to recover repayment of any costs from Santander, although there was a risk that Santander might be unable to recover sums expended in costs if a stay was imposed.[21]As for the sums claimed by way of costs, it could not be said that these were disproportionate (and, as such, likely to be disallowed or reduced on detailed assessment) having regard to:(i) the value of the claim;(ii) CCP’s conduct (repeated amendments of the particulars of claim, applications for postponements, and late submissions which had given rise to the need for additional work, in particular given that Santander had (unlike NatWest) served a defence, which had then required amendment);(iii) the wider ranging impact of the case, which raised a point of considerable significance for Santander. The 75 per cent awarded on an interim basis had thus to be seen in context, and it was notable that, the assessed costs awarded to NatWest had been 87.65 per cent of the costs it claimed. The legal framework My power to vary the earlier order

The legal framework

[22]Pursuant to CPR 3.1, it is recognised that the court has general powers of case management, which can include the power to vary or revoke an earlier order (CPR 3.1(7)). Where an order is, however, final in nature, the case law makes clear that, subject to any appeal, it will remain final unless there are exceptional grounds for varying or revoking it without an appeal (Vodafone Group plc v IPcom GmbH and Co KG [2023] EWCA Civ 113). In Tibbles v SIG plc [2012] EWCA Civ 518, Rix LJ (giving the leading judgment) noted that the primary circumstances in which the discretion afforded under CPR 3.1(7) would be exercised would normally only be:
“39. ... ... (ii) ... (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated. ...”
Going on to observe:
“(vii) ... the successful invocation of the rule is rare. Exceptional is a dangerous and sometimes misleading word: however, such is the interest of justice in the finality of the court’s orders that it ought normally to take something out of the ordinary to lead to variation or revocation of an order, ...”
[23]Recognising, however, that CPR 3.1(7) might properly allow for the revisiting of an order where a matter had previously been overlooked, Rix LJ further acknowledged:
“41. Thus it may well be that there is room within CPR 3.1(7) for a prompt recourse back to a court to deal with a matter which ought to have been dealt with in an order but which in genuine error was overlooked (by parties and the court) and which the purposes behind the overriding objective, above all the interests of justice and the efficient management of litigation, would favour giving proper consideration to the materials already before the court. This would not be a second consideration of something which had already been considered once (as would typically arise in a change of circumstances situation) but would be giving consideration to something for the first time. On that basis, the power within the rule would not be invoked in order to give a party a second bite of the cherry, or to avoid the need for an appeal, but to deal with something which, once the question is raised is more or less obvious, on the materials already before the court.”
[24]Where a court makes an order of its own initiative without hearing the parties or giving them an opportunity to make representations (as expressly provided by CPR 3.3(4)) it is, however, made clear that a party affected by the order may apply to have it set aside, varied or stayed (CPR 3.3(5)).

Costs

[25]In relation to costs, the general rule is that costs should follow the event (CPR 44.2(2)(a)).[26]In the present case, costs have been ordered on the standard basis, such that, on any assessment of costs, pursuant to CPR 44.3(2) the court will:
“(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.”
[27]By CPR 44.3(5) it is stated that costs incurred are proportionate if they bear a reasonable relationship to- “(a) the sums in issue in the proceedings; (b) the value of any non-monetary relief in issue in the proceedings; (c) the complexity of the litigation; (d) any additional work generated by the conduct of the paying party; (e) any wider factors involved in the proceedings, such as reputation or public importance; ...”[28]As PD 44 paragraph 9.2(b) makes clear, unless there is good reason not to do so (for example where the paying party shows substantial grounds for disputing the sum claimed), at the conclusion of a hearing that has lasted not more than one day, costs will be summarily assessed, such that the order will deal with the costs of the application or matter to which the hearing related. If the hearing in question disposes of the claim it is further provided that the order may deal with the costs of the whole claim.[29]Where, however, the court orders that a party is to pay costs subject to detailed assessment, pursuant to CPR 44.2(8):
“... it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.”
[30]In Excalibur Ventures LLC v Texas Keyston Inc and ors [2015] EWHC 566 (Comm) Christopher Clarke LJ provided the following guidance in determining what would constitute “a reasonable sum” for these purposes:
“23. What is a reasonable amount will depend on the circumstances, the chief of which is that there will, by definition, have been no detailed assessment and thus an element of uncertainty, the extent of which may differ widely from case to case as to what will be allowed on detailed assessment. Any sum will have to be an estimate. A reasonable sum would often be one that was an estimate of the likely level of recovery subject, as the costs claimants accept, to an appropriate margin to allow for error in the estimation. This can be done by taking the lowest figure in a likely range or making a deduction from a single estimated figure or perhaps from the lowest figure in the range if the range itself is not very broad. 24. In determining whether to order any payment and its amount, account needs to be taken of all relevant factors including the likelihood (if it can be assessed) of the claimants being awarded the costs that they seek or a lesser and if so what proportion of them; the difficulty, if any, that may be faced in recovering those costs; the likelihood of a successful appeal; the means of the parties; the imminence of any assessment; any relevant delay and whether the paying party will have any difficulty in recovery in the case of any overpayment.”
In Excalibur, the court considered 80 per cent of the sum claimed to be a reasonable amount.[31]In its submissions, CCP placed reliance on the interim costs order made in Mars UK Ltd v TeknowledgeLtd [2000] FSR 138, where the view was taken that costs were likely (on assessment) to be limited to around 40 per cent of the sum claimed and the interim award made was calculated as two-thirds of that amount. It further drew my attention to the lower levels of interim awards made in various other cases and emphasised the (obiter) observations of Master Brown at paragraph 53 Nax v MAX and Liverpool Victoria General Insurance Group Limited [2021] EWHC 3492 (QB), where concerns were expressed as to the “highly excessive” nature of the costs claimed. I do not consider, however, that much assistance can be derived from other decisions, inevitably involving highly fact-sensitive determinations as to what would be a “reasonable sum” in the cases in question. It seems to me that (per Excalibur paragraph 23) I am required to seek to arrive at a real-world estimate of the likely level of recovery in the case before me, allowing for an appropriate margin for error in my estimation. More generally, given the discretion afforded to me, I should step back and consider all relevant factors, including those specifically identified at paragraph 24 of Excalibur.

Stay

[32]By CPR 52.16 it is made clear that, unless ordered by either the appellate or lower court:
“... an appeal shall not operate as a stay of any order or decision of the lower court.”
[33]In determining whether to exercise my discretion to allow a stay, however, it is common ground that I should follow the guidance provided in Hammond Suddards Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, as follows:
“22. ... Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?”

Analysis and decision

[34]The first question must be whether it is open to me to consider this application to vary my earlier order.[35]Insofar as the application relates to my refusal of CCP’s request for a stay of any costs award and/or to the making of an interim award of costs, I do not consider that my order of 25 March 2025 can properly be characterised as having been made pursuant to CPR 3.3(4). By paragraph 53 of the draft judgment, the parties had been directed to make representations as to the content of the order (either agreeing the terms of the order or highlighting points in dispute) and/or any further applications (with submissions thereon) in advance of the handing down of the judgment. Under CPR 44.2(2)(a), as CCP has accepted, the expectation would have been that costs would follow the event; further, to the extent that the court directed that costs would be subject to a detailed assessment, pursuant CPR 44.2(8), CCP would have expected a reasonable sum to be awarded on account unless there was a good reason for such an order not to be made. Given the applicable provisions of the CPR, and the direction made in advance of the order, I do not consider it can properly be said that CCP was denied the opportunity to make representations on these questions.[36]In reaching this view, I bear in mind that CCP had made clear that it sought the opportunity to address the court at a further “consequentials hearing”; that was stated in its annotated version of the draft proposed order, although no explanation was provided in CCP’s written submissions as to why a further hearing was required. As stated at paragraph (2) of the reasons provided for the 25 March 2025 order, having regard to the matters that had been raised by the parties, I was unable to see that it was proportionate to list a further hearing. In subsequently directing that there should be a further oral hearing in relation to the application of 1 April 2025, however, I included provision for CCP to file any further evidence or material it considered relevant, so as to ensure that no point had been inadvertently overlooked. In particular, I was conscious that CCP had stated that any appeal it might seek to pursue would be stifled if a stay was not granted, albeit no evidence had previously been filed to support that assertion. To the extent that CCP might not have understood that it could have filed that evidence prior to the handing down of judgment, I was concerned to ensure that any such omission was rectified.[37]In the event, CCP did not take up the further opportunity to file any evidence relevant to the question of potential prejudice that it might suffer absent the imposition of a stay on costs. The only material I have in this regard has been filed by Santander, in the form of CCP’s most recent accounts. Accepting that the sums in question refer to CCP’s capital assets and reserves, I do not consider that this evidence supports a suggestion that any appeal would be stifled if no stay is granted (see per Hammond Suddards v Agrichem). To the extent that CPR 3.1(7) might, as a matter of principle, allow me to revisit my order because relevant material had previously been overlooked (per Tibbles v SIG), I am satisfied that this is not the position in this case.[38]Thus far my focus has been on the question of a possible stay, but the same points can be made in respect of the decision, as a matter of principle, to make an interim costs award: there is no material before me that would suggest there is any good reason not to order that CCP should pay a reasonable sum on account of costs in this case. Having taken the view that all costs should be subject to a detailed assessment, I cannot see that it would be just not to make an interim award pending that final determination. Accepting that Santander will have greater resources available to it than CCP, I do not accept that this must mean no interim award should be made. And, as I have said, the evidence does not support the suggestion that CCP will be unable to pursue an appeal as a result; on the other hand, Santander’s resources provide CCP with the reassurance that, if successful on its appeal, it will then be fully reimbursed.[39]The final question relates to the sum awarded on account of costs. On this issue, the first point to note is that (contrary to CCP’s submissions) the amount of the interim costs award is not greater than that sought by Santander. On the contrary, Santander’s proposal was for the costs of the appeal hearing to be summarily assessed, with full payment of the assessed costs then being required within 14 days. To the extent that costs were not the subject of summary assessment (as was the position in relation to the costs of the underlying claim), Santander sought an interim award at the level of 75 per cent of its claimed costs. My award was not, therefore, greater than the amount identified by Santander, but accepted the adoption of a level of 75 per cent when determining the appropriate sum for any interim payment of costs that would otherwise be the subject of a later, detailed assessment.[40]CCP objects, however, that it was wrong to accept that the interim award should be made at a level of 75 per cent of the claimed costs. In this regard, it contends that the court wrongly proceeded on the basis that Santander’s costs were not the subject of challenge: although no issue had been taken with the costs schedules that had previously been served, CCP says that it had reasonably taken the view that this was not something it had been required to do prior to the handing down of judgment on 25 March 2025.[41]In making the direction at paragraph 53 of my draft judgment, I was aware that the parties had each served and filed costs schedules prior to the hearing on 27 February 2025, and that schedules had also previously been exchanged relating to the overall costs of the proceedings. I also anticipated that, pursuant to PD 44 paragraph 9.2(b), unless it considered there was good reason not to do so, the expectation would be that the court would carry out a summary assessment of costs. The draft orders made clear that Santander was seeking that the court should summarily assess the costs of the appeal, which were duly set out in its costs schedule. On the face of the representations made by the parties, I was unable to see that CCP was raising any challenges to the costs claimed; certainly, its submissions (and annotations to the draft order) did not seek to suggest that Santander’s costs were disproportionate and/or should be disallowed/made subject to significant reduction.[42]To the extent that CCP did not read paragraph 53 of the draft judgment as allowing for submissions to be made on the level of any costs award (whether final (on a summary assessment) or interim (if a detailed assessment was ordered)), I can, however, see that it might be said that my order of 25 March 2025 proceeded on the basis of a misstatement as to the facts: namely, that CCP was not seeking to challenge specific aspects of Santander’s claimed costs. By its application, CCP promptly sought to correct this apparent misapprehension and I can accept that, applying the overriding objective, the broader interests of justice require that I ought to re-visit my earlier assessment as to the appropriate sum of an interim costs award. Approaching the 1 April 2025 application from this perspective, I have therefore reviewed my earlier decision as to the amount of the interim costs award, asking whether the sum awarded can be said to be “reasonable” having regard to the likely final level of recovery (allowing for an appropriate margin of error) and, more generally, to all other relevant factors, including the likelihood of a successful appeal, the parties’ respective means, the imminence of any assessment, any relevant delay, and whether CCP will face difficulty in recovery in the case of any overpayment.[43]In making my original order, I was alive to the potential risk of double-recovery when separately assessing the costs relating to an appeal from those claimed in respect of the underlying proceedings. It was for that reason that I declined to summarily assess the appeal costs, and directed that all costs should be subject to a detailed assessment. I thus had in mind the full costs claimed when then turning to the question of what would constitute a “reasonable sum” to be paid on account of costs.[44]In then seeking to estimate the likely level of recovery on the detailed assessment, I did not take the view that the total sum claimed by Santander was clearly disproportionate. Accepting that the amount in issue in the underlying claim was limited to something less than half a million pounds, it was apparent that, so far as Santander was concerned, this was not the only relevant factor when determining proportionality in this case. CCP’s claim was based on an extension of the Quincecare duty (dismissed by the Master) and/or on a novel duty of retrieval (which the Master had allowed to proceed); while CCP’s interest in the proceedings was limited to the £415,000.00 odd it had lost in the APP fraud, the potential impact of the claim for Santander was plainly far greater. Seeing the costs claimed with this wider factor in mind, and accepting a degree of complexity in the legal arguments involved, I did not view Santander’s costs, viewed in general terms, as excessive.[45]It was also apparent to me that the costs incurred would need to be considered in the light of CCP’s conduct of the proceedings. As the decision of the Master makes apparent, there had been various amendments of the claim (including an amendment very shortly before the hearing below), which would inevitably have increased the work undertaken by those acting for Santander and, therefore, the costs incurred. This was all the more so given that Santander had (unlike NatWest) already served its defence, and would thus need to re-visit its own pleaded case when considering any amendments proposed by CCP.[46]In seeking to reach a realistic estimate of the likely level of recovery of costs in this case, I also took account of the assessment carried out by the Master in relation to NatWest’s claimed costs. Those costs related to the entirety of the proceedings below, and were awarded at just below 90 per cent of the total sum claimed.[47]Having provided CCP with the opportunity to address the question of costs (and, specifically, the sum awarded by way of an interim award) at a further hearing, I am unable to see that anything has been identified that would detract from the considerations I have set out above. Without seeking to carry out a full assessment of the costs claimed, CCP has, however, identified more specific points of concern, as follows (to summarise):(a) in respect of the large number of fee-earners working on the claim;(b) in relation to the involvement of both a grade A fee-earner and counsel at various stages in the proceedings;(c) in the attendances on the former co-defendant in relation to the appeal;(d) in the time spent in attendance on the client;(e) in the potential duplication of work below, given the submissions made by NatWest; and(f) in relation to the unsuccessful arguments on limitation (relevant to the amendment application below).[48]I do not accept that all these points are valid (I am, for example, unable to see that there was unnecessary duplication of points run by NatWest in the underlying claim), but am prepared to accept that some potentially relevant questions have been identified. Thus, given that I was mistaken in my understanding that no challenge was being made to Santander’s costs, and allowing that some valid points of concern have been identified, I am prepared to re-visit the percentage level of the interim award, reducing this to 60 per cent of Santander’s claimed costs. That, it seems to me, properly takes into account such points as have been identified by CCP at this stage, and, without unfairly prejudicing Santander, fully allows for an appropriate margin of error. Given the view I have already formed as to the merit of the underlying claim, the prospect of an appeal does not lead me to consider that this award should be reduced further, and I am not persuaded that any such appeal will be stifled by the making of an interim award at this stage. Moreover, given the position of Santander, this is not a case where CCP can have any concern as to recovery should this award result in any overpayment.[49]Thus, correcting the earlier misstatement as to CCP’s position on costs, and having regard to all relevant factors, I am prepared to allow the application to vary my order of 25 March 2025 to the following extent:(1) Paragraph 4) should be amended to remove any decision on the application for permission to appeal (this being a matter solely for the Court of Appeal).(2) Paragraph 7) should be amended to reduce the level of the interim award to 60 per cent of Santander’s claimed costs.[50]The parties are directed to provide an agreed form of the order of 25 March 2025 thus varied in the ways set out in the preceding paragraph. Following the usual practice, this judgment will be sent out in draft form in advance of the formal handing down of my ruling, and it is expected that the agreed form of the varied order will be filed with the court at least two working days prior to the date listed for the handing down of the judgment. The parties are also encouraged to seek to agree the appropriate costs order relating to this further hearing and an agreed minute of order should also be filed at least two working days prior to the date listed for hand down. To the extent that agreement cannot be reached, concise written submissions should be filed within the same time period, setting out the parties’ respective positions on costs (which, for the avoidance of doubt, should assume that the amount of costs will be summarily assessed and should, therefore, address the detail of any dispute as to the amount/s claimed by reference to the schedule of costs) and/or on any other matter arising in consequence of this ruling.