CPR 44.10 | The Sound of Silence | When A Court Order Is Silent As To Costs

In the busy world of civil litigation, the wording of a court order is paramount. Every phrase, every comma can have significant implications. But what happens when an order is conspicuously silent on the issue of costs? This isn’t just a minor oversight; it triggers a specific rule – Civil Procedure Rule (CPR) 44.10 – with potentially significant financial consequences for your clients.

The General Rule: Silence Usually Means No Costs

The starting point, and the most critical takeaway, is CPR 44.10(1)(a)(i). It states with stark clarity: “Where a court order does not mention costs no party is entitled to costs in relation to that order”. 

This means if you’ve attended an interim hearing, made an application, and the judge issues an order that simply doesn’t address who pays the costs for that specific event, the default position is that each party bears their own. This principle has been consistently upheld by the courts. For instance, in Griffiths v Commissioner of Police for the Metropolis , it was established that a trial judge generally can’t just go back and add a costs order to an earlier interim order that was silent. More recently, Baltaj Johal & Others v Secretary of State for the Home Department confirmed that CPR 44.10(1)(a)(i) is clear in its effect: if previous orders didn’t mention costs, and no one tried to vary them at the time, the general rule applies – no party gets costs for those specific orders.

When Silence Doesn’t Mean No Costs: The Deemed Order Exceptions

Like many legal rules, CPR 44.10(1) has exceptions, found in CPR 44.10(2). In certain specific circumstances, even if an order is silent on costs, a costs order is “deemed” to have been made, usually for “the applicant’s costs in the case”. This means the applicant can recover those costs if they ultimately win the main litigation. These exceptions include orders:

• Granting permission to appeal.
• Granting permission to apply for judicial review.
• Made on an application made without notice to the other side (an ex parte application).

The logic for the “without notice” exception is clear: the other side wasn’t there to argue about costs, so the applicant’s position is preserved contingently. However, as Baltaj Johal highlighted, if the orders were not made without notice, this exception can’t be relied upon. 

Don’t Confuse Silence with Other Costs Orders

It’s vital to distinguish an order that is “silent as to costs” from orders that explicitly deal with costs, such as:

• “No order as to costs” / “Each party to pay own costs”: This is an active decision by the court that each side bears its own costs for that stage. CPR 44.10 doesn’t apply because the order isn’t silent.
• “Costs in the case” / “Costs in the application”: The costs of that interim step will follow the final costs award. 
• “Costs reserved”: The decision on costs for that stage is deferred. If not later decided, it defaults to “costs in the case” under Practice Direction 44 paragraph 4.2.

Understanding these distinctions is crucial for advising clients accurately.

What About Multiple Applications and Adjournments?

A common scenario involves a hearing dealing with multiple applications. What if the order from that hearing is silent on costs, and some of those applications were adjourned to a later date?

• For applications determined at the first hearing: If the order is silent, CPR 44.10(1) applies. No party is entitled to costs for those specific applications from that first hearing. That ship has likely sailed. 
• For applications adjourned at the first hearing: The silence of the initial order does not typically prevent a costs order being made when these adjourned applications are eventually heard and determined at the subsequent hearing. The second hearing is a new event for those specific applications, and costs can (and should) be addressed then.
• Costs of the adjournment itself: If a party sought costs specifically for the adjournment at the first hearing (e.g., costs thrown away) and the order was silent on that specific request, then CPR 44.10(1) would likely mean no one gets those adjournment costs.

This highlights the need for precision. If an order from a multi-application hearing is globally silent, costs for all determined matters at that point are generally lost.

A Note on Family Proceedings: The Timokhina Distinction

You might encounter the case of Timokhina v Timokhin , where the Court of Appeal discussed a “residual discretion” to make retrospective costs orders even if an earlier order was silent. It’s important to note that Timokhina was a family law case. The Family Procedure Rules (FPR) have a distinct costs regime, notably disapplying the general civil rule that “costs follow the event”. The reasoning in Timokhina appears heavily tied to this specific FPR framework. In general civil proceedings, the stricter interpretation seen in cases like Griffiths and Baltaj Johal is more likely to apply. 

Key Takeaways for Practitioners:

1. Be Proactive: Always address costs at the conclusion of any hearing or in written submissions for paper determinations. Don’t assume the judge will deal with it unprompted.
2. Seek Clarity in Orders: Ensure any order accurately reflects the judge’s decision on costs. If an order is drafted and is unexpectedly silent, raise it immediately.
3. Understand the Limits: The “slip rule” (CPR 40.12) is for accidental omissions, not for introducing a costs order that was never made or considered.
4. Advise Your Clients: Explain the risk that if an order is silent on costs, those costs may be irrecoverable from the other side.
5. Adjournments are New Opportunities (for those specific applications): If an application is adjourned, ensure costs for that application are dealt with when it is finally heard. Don’t assume the silence of a previous, broader order covering the initial hearing will dictate the costs of the subsequently heard adjourned matter.

The default position under CPR 44.10 is unforgiving. Vigilance and proactivity are your best defences against the unintended financial consequences of a court order’s silence.

Disclaimer: This blog post is for general information purposes only and does not constitute legal advice. You should seek specific legal advice on any particular matter.