FIELDFISHER LLP V SCHERBAKOVA & ANOR [2026] EWHC 104 (SCCO)
A party claiming impecuniosity to resist an unless order for non-payment of interim costs must provide detailed, cogent evidence of their financial position. Inference and assertion are insufficient, and failure to do so will not justify relief from sanctions.
A party seeking to discharge or vary an order under CPR 3.1(7) must normally demonstrate either a material change of circumstances since the order was made, or that the facts on which the original decision was based were misstated. Arguments that were available but not advanced at the time of the original order do not constitute a material change. [194, 197, 200]
An application for relief from sanctions under CPR 3.9, where the sanction is for non-payment of an interim costs order, requires a party asserting impecuniosity to support that claim with detailed, cogent and proper evidence giving full and frank disclosure of their financial position; inference or unsupported assertion is insufficient. [148, 172, 250]
Where a defaulting party appears to have no or markedly insufficient assets in the jurisdiction and has not adduced proper evidence of impecuniosity, the court ought generally to require payment of a costs order as the condition for being allowed to continue with the proceedings, unless strong reasons are shown to the contrary. [148, 252]
An ‘unless order’ imposing a sanction for non-compliance with a prior order for an interim payment is a separate order enforcing compliance, not a variation of the original interim payment order under CPR 25.20(6). The power under CPR 25.20(6) to vary or discharge is a mechanism to adjust the amount of an interim payment, not to remove a conditional sanction for non-payment. [213-214, 221]
The court has a discretion to adopt the procedure in CPR 46.10 for the assessment of a solicitor’s disputed fees, modified as necessary, even where the fees are sued upon as an unpaid debt rather than under the Solicitors Act 1974, provided the procedure is sensible and both parties participate. [11-12, 19]
