5.4. Costs.

There will need to be an application for costs. An application will be made by the suc­cessful party for costs to be assessed, if not agreed. In a fast track trial lasting less than one day it is probable that the court will proceed to a summary assessment of costs. The necessary costs schedules should have been exchanged in advance of the case. Even at the time of writing, however, two years after the Civil Procedure Rules came into effect, it has been noted by many that circuit judges in particular are very uncomfortable with dealing with summary assessment of costs. Counsel are also very uncomfortable with presenting arguments about them for the very good reason that under the previous regime neither circuit judges nor, usually, barristers ever had any experience of dealing with costs and arguments in relation to them. In many cases, there is already a tendency to decline summary assessment of costs and order a detailed assessment. This may well appear a fairer procedure if, as is not uncommon, the costs claimed by a successful party exceeds the amount at stake in the action. In cases that are not on the fast track, detailed assessment will be the norm and an order for it will be made at the end of the trial.

Orders will need to be made also for assessment of the costs if one of the parties is publicly funded. If that party has lost, the court may have to consider applications for costs against that party and the relevant criteria which depend, in part, on whether a legal aid certificate was issued before the changes in public funding introduced in April 2000 under the Access to Justice Act 1999.

It is normal for the court to deal with assessment of costs at the end of the hearing of interim applications, and in principle to assess them summarily then and there. Some­times costs are reserved, however, if it is not clear until some future event on whose side the merits of the application lay.

If the conduct of the opponent's legal representatives has given cause for complaint, it may be that this is the occasion when an application for wasted costs should be made. The trial judge may make an appropriate order if he has seen sufficient evidence of what occurred at the trial, but more usually he will adjourn the question either back to himself after the legal representative has had the opportunity to consider what representations to make, or he may refer it to the district judge who assesses the costs.

5.5. Stay of execution.

If judgment has been given against the defendant, it may be that the defendant wishes immediately to ask for a stay of execution. This may arise in two situations:

(a) Pending appeal. The mere giving of notice of appeal does not in itself stay a judgment, and a winning party would be perfectly entitled to go ahead to enforce that judgment pending appeal. Therefore there has to be a specific applica­tion to the trial judge at the time, or subsequently to the Court of Appeal, to stay execution on the judgment.

(b) If the judgment debtor does not have the means for immediate payment, applica­tion can be made to the trial judge for an order staying enforcement of the judgment, usually on terms that it is paid by instalments. This will naturally not be relevant in cases where the defendant is insured. If the defendant has not asked for a stay of execution at the trial, he may apply at any time thereafter by application to a district judge with a full statement of means and there will then be a further hearing.