Tag: points of dispute

Refusal to strike out non-compliant point of dispute overturned on appeal

Robert PattersonLeave a comment

Where points of dispute are served in detailed assessment proceedings, they must comply with the requirements of Practice Direction 47, section 8.2. If it is found that points of dispute do not comply with the requirements  of the Practice Direction, then a paying party runs the risk of the points of dispute being struck out as per Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 (19 February 2020).

Non-compliant points of dispute can of course be remedied. Documents served in detailed assessment proceedings can be varied in accordance with section 13.10 of the Practice Direction. Permission is not required to vary a document, but the Court may permit it on conditions or disallow it. The Court should only exercise this power in accordance with the overriding objective and if an amended or varied document is not served and filed in good time before a detailed assessment hearing, then it may be disallowed.

The recent case of Ward v Rai (Rev1) [2025] EWHC 1681 (KB) (03 July 2025) underlines the importance of compliance with the mandatory provisions of section 8.2 and also demonstrates the consequences of submitting an variation, very late in the proceedings. It is also a rare example of an appellate Court using its limited powers to overturn a discretionary case management decision.

The decision at first instance

The appeal centred around the document item in the receiving party’s bill of costs, which claimed 134.1 hours for work done on documents. The paying party’s point of dispute raised only general objections and indicated that the paying party would rely on an “annotated documents schedule of objections” (which was not served with the points of dispute). The point of dispute concluded with an offer of 68.3 hours in respect of the time claimed.

In his replies to points of dispute, the receiving party submitted that the point of dispute should be struck out because it did not comply with the mandatory provisions of section 8.2 and relied on the decision in Ainsworth.

The paying party’s “annotated documents schedule of objections” was not served until 2 working days before the commencement of the detailed assessment hearing, which had been listed for 2 days. This schedule was the first and only attempt by the paying party to identify which items in the document schedule were in dispute. Furthermore, the schedule offered a primary case of 58.5 hours and an alternative case of 58.8 hours; circa 10 fewer hours than the original point of dispute.

Unsurprisingly, the Judge at first instance was asked to disallow the point of dispute in respect of the document item, which he refused to do on grounds that the original point of dispute would have enabled a broad-brush assessment to take place. In addition, and whilst being critical of the paying party for serving the schedule late, the Judge was equally critical of the receiving party for failing to chase the paying party’s schedule. Ultimately the Judge permitted the paying party to rely on the schedule and adjourned the hearing into a third day.

At the conclusion of the third day, the receiving party’s bill was assessed in sum of £89,032.62 with £8,234.91 in interest, which was lower than the paying party’s Part 36 Offer. Consequently, the receiving party was ordered to pay the costs of the detailed assessment.

The appeal

The receiving party appealed the Judge’s decision not to strike out the point of dispute in respect of the document item and the Judge’s decision to permit the paying party to rely on its schedule. There were 5 grounds of appeal:

  1. The Judge failed to give proper effect to the correct interpretation of PD 47, paragraph 8.2(b) and in doing so, wrongly applied Ainsworth;
  2. That the Judge had misdirected himself in finding that the original Points of Dispute would have allowed there to have been a “fairly broad-brush assessment in any event”;
  3. The finding that the receiving party should have chased the paying party for the schedule and that both parties were at fault, was wrong;
  4. A finding that a Costs Judge had “very wide powers” to permit a variation; and
  5. That the Judge was wrong to permit the paying party to rely on the schedule as there had been no ambush.

The appeal court dismissed all 5 grounds. Ground 1 was dismissed because the Judge did not find that the original point of dispute was compliant and could not be said to have wrongly applied the law. Ground 2 failed because the Judge did not misdirect himself, while grounds 3 and 4 were dismissed because the Judge was entitled to find that the receiving party had a duty to chase the paying party and it was open to him to find that there was no ambush. Ground 5 failed because, the Judge had correctly identified that his powers under section 13.10 were wide.

However, the receiving party made an overarching point that the Judge’s approach was wrong because the Judge had failed to give sufficient weight to the mandatory aspects of paragraph 8.2(b) and had failed to ensure that the powers in 13.10(2) were exercised in accordance with the overriding objective.

In allowing the appeal, the Court found that had the Judge disallowed the original point of dispute, the detailed assessment would have concluded on the second day and there would not have been a third day. The Court also found that the paying party had been on notice of the receiving party’s intentions to have the original point of dispute struck out for 7 months and took no steps to serve the schedule until two working days before the hearing, which the Court found was an even more egregious an issue than in Ainsworth where there was 5 months’ notice of the issue without remedy.

The Court also rejected the paying party’s reason for the delay, that he hoped the matter would settle, as being circular: settlement would have been more likely if the schedule had been served sooner. The appeal court therefore held that the Judge’s refusal to strike out the original point of dispute and the decision to permit the paying party to rely on the schedule was wrong.

Conclusion

Although the judgment does not say as much, a decision to strike out the non-compliant point of dispute would have brought to an end the paying party’s entitlement to dispute a significant element of the bill (134.1 hours of document time) with the result that this may have been allowed in full.

Whilst those consequences may appear to be severe, they could easily have been avoided by serving compliant points of dispute in the first instance or by acting promptly in submitting a variation when the issues were first raised in the replies to points of dispute.

Robert Patterson is a Senior Associate in the Costs and Litigation Funding Department at Clarion Solicitors and can be contacted on 07810 750 360 or at robert.patterson@clarionsolicitors.com

Points of Dispute and Replies: The Dos and Donts

Laura SugarmanLeave a comment

CPR 47 provides that Points of Dispute and Replies should follow “as closely as possible” the format of Precedent G. CPR 47.9 allows for the paying party to raise disputes to points in the Bill of Costs drafted by the receiving party.

Points of Dispute ‘must be short and to the point’; parties are expected to make their point in a succinct and concise way. In the recent case of Mead v British Airways PLC, the Defendant spent over seven pages setting out one point of dispute. The claimant’s reply was two pages. District Judge Moss accepted the Claimant’s position and the point was dismissed. This is a clear example that a point can be raised and dealt with concisely without the need for disproportionate and lengthy argument. Indeed, in our experience less is often more and judges can be put off and confused by excessive Points of Dispute or Replies. It is not uncommon to see assessing judges commenting to the effect that Points of Dispute were too long and whilst this may not directly affect the outcome, it may well make the judge less well-disposed to a party in the assessment.

Practitioners tempted to set out Points of Dispute or Reply at great length should bear in mind the cautionary tale of Mylward -v- Weldon [1595] EWHC Ch 1, in which the court held that the matters in dispute could have been set out in 16 pages, rather than the 120 page bundle which the claimant’s lawyer had filed. The court ordered that the claimant’s legal representative should be brought to court, and the warden “shall cut a whole in the myddest of the {bundle}, and put {the lawyer’s} head through the hole, so that it hangs about his shoulders; and then shall lead him bare headed and bare faced round about Westminster Hall whilst the Courts are sitting and shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet {prison} and keep him prisoner until he shall have paid £10 to Her Majesty for a fine, and 20 nobles to the defendant for his costs in respect of the aforesaid abuse”.

That said, it is imperative for parties to explaining the reasoning as to why they dispute an item in a Bill of Costs. It is not enough to merely state that an item is disputed; the reasons for the dispute must be disclosed. The onus is on the parties to find the correct balance of getting the point across and providing the required information to ensure the point/reply is agreed with by the DJ.

When filing Points and Replies, it is imperative all parties know the relevant dates they are required to adhere to. For context, when a formal Bill of Costs is served by the receiving party, with an N252 will be served. This gives the date for which Points of Dispute are required to be served, which in general is 21 clear days following the date of service. The paying party is permitted to request an extension of time for this, and it is at the discretion of the receiving party to grant or deny the same and there are consequences for failure to comply. Whilst the Rules state that replies to points of dispute must be filed within 21 days of receipt of the points of dispute, there is no sanction for failure to comply. Therefore there is less risk to a receiving party which serves its Replies out of time, however it is possible for the court to impose a sanction (though this is not automatic). CPR 47.13 stipulates that the receiving party may reply to the points of dispute and the receiving party may do so within 21 days. This was supported in Pipe v Electrothermal Engineering Limited where it was confirmed that the receiving party is not limited to 21 days to respond.

The main differences between the paying and receiving party are as follows: should the paying party fail to serve points of dispute within the 21 days, there could be cost implications and the receiving party would be permitted to apply to the court for a Default Costs Certificate, which is an order that the costs claimed by the receiving party be paid in full (effectively a Default Judgment in costs). Whilst it may be possible to apply to set a Default Costs Certificate aside, there is inevitably a risk that the application will not be granted and it is likely that there will be a costs sanction to the receiving party even if it is.

In summary, parties should always follow Precedent G; always ensure points and replies are short and to the point. When undertaking costs proceedings, always be aware of the deadlines and dates to adhere to ensure you are not subjecting your client to unnecessary costs.