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The County Court at Derby’s decision in Maidens v Building Supplies Distribution Limited [2026] EWCC 25 addresses whether the court should entertain interim applications before provisional assessment is conducted.
Background
The underlying claim in Maidens v Building Supplies Distribution Limited [2026] EWCC 25 was a personal injury matter which settled for £43,000 on a Part 36 basis. Following settlement, the Claimant’s costs lawyers served a bill of costs in the sum of £56,460, together with notice of commencement, on 19 February 2025. The Defendant served Points of Dispute on 5 June 2025, and the Claimant served Replies on 26 July 2025. The matter fell within the provisional assessment regime under CPR Part 47, and was transferred to District Judge Davies sitting as Regional Costs Judge at the County Court at Derby from the County Court at Lincoln.
The Defendant’s Points of Dispute were accompanied by an itemised Excel spreadsheet, appended with the intention of rendering the Points of Dispute compliant with the requirements identified in Ainsworth. The Claimant’s Replies took issue with the use of that spreadsheet, contending that it could not properly be relied upon at provisional assessment. The Replies also raised more routine objections concerning the adequacy of Ainsworth particularisation in relation to specific points, including Points 7, 15 and 20.
The Defendant subsequently brought an interim application under Part 23, seeking a declaration that the Points of Dispute were compliant with CPR PD 47 paragraph 8.2, and also seeking to strike out those parts of the Replies which asserted non-compliance with Ainsworth. That application was adjourned and came before District Judge Davies on 15 April 2026, with Mr A Hood (solicitor) of Carter Burnett appearing for the Claimant and Mr P Hughes (counsel) instructed by Kennedys Law appearing for the Defendant, both attending remotely by Cloud Video Platform.
By the time of the hearing, the factual and procedural landscape had narrowed. The Claimant conceded the admissibility of the Excel spreadsheet for the purposes identified in Ainsworth, with the result that the majority of the Replies on the spreadsheet issue fell away, save for the Replies to Points 7, 15 and 20. The Claimant indicated that Amended Points of Reply would be filed and served to reflect that concession.
Costs Issues Before the Court
The application raised two distinct issues for determination. The first was a jurisdictional question: whether the Court had any power to entertain a Part 23 interim application within the provisional assessment regime at all. The Claimant’s position was that no such jurisdiction existed, relying on PD 47 paragraph 14.2(2), which excludes paragraph 13.7 of PD 47 from the provisional assessment process. Paragraph 13.7 would otherwise permit applications under Part 23 in the context of detailed assessment proceedings. The Claimant argued that, absent an express provision permitting such applications, the provisional assessment regime was a self-contained process which did not accommodate preliminary or interim applications of this kind.
The second issue, which arose only if the Court found that jurisdiction existed, was whether it should exercise its discretion to determine the remaining Ainsworth compliance disputes in relation to Points 7, 15 and 20 in advance of the provisional assessment on the papers. The Defendant invited the Court to resolve those issues there and then. The Claimant resisted that course, arguing that Ainsworth compliance is a qualitative matter for the judge conducting the provisional assessment, and that determining such issues in advance would fetter the discretion of the assessing judge and interfere with the streamlined nature of the regime.
A further, subsidiary point arose as to whether the application, or its continued pursuit following the concession on the Excel spreadsheet, amounted to an abuse of process.
The Parties’ Positions
The Claimant’s position was, in the first instance, that the Court simply had no jurisdiction to hear the application. Reliance was placed on PD 47 paragraph 14.2(2), which disapplies paragraph 13.7 within the provisional assessment regime. It was submitted that this exclusion reflected a deliberate policy choice: the provisional assessment process is streamlined and self-contained, and the mechanism for challenging the outcome is an oral review following assessment on the papers. There is, on this analysis, no room for Part 23 applications within that process save where expressly provided for. If the Defendant wished to litigate preliminary issues of this kind, the appropriate course was to apply to remove the matter from the provisional assessment regime and seek a full detailed assessment under CPR 47.15(6).
On that basis, the Claimant submitted that the application was an abuse of process and should be dismissed on that ground alone. In the alternative, if the Court found that jurisdiction existed, it was submitted that the remaining Ainsworth disputes in relation to Points 7, 15 and 20 were matters of evaluation and degree, properly to be addressed by the judge conducting the provisional assessment when considering the individual entries in the bill. It was further submitted that, in any event, alternative submissions and concessions were already contained within the Replies, such that the provisional assessment could proceed on the papers without any preliminary determination. Mr Hood also submitted that the Defendant was, in substance, seeking to censor the Claimant’s criticisms of the Points of Dispute, and that entertaining the application would set an undesirable precedent by encouraging parties to litigate costs disputes by instalments.
The Defendant’s position was that the Court did have jurisdiction to hear the application, notwithstanding the exclusion of paragraph 13.7. Mr Hughes submitted that the exclusion of that paragraph did not operate as a blanket prohibition on all applications; rather, the Court retained its general case management powers under CPR 3.1(2)(k) and (m), which remained available regardless of the assessment regime in play. The provisional assessment regime governed the method of assessment but did not strip the Court of its inherent case management jurisdiction to deal with discrete procedural issues. On the substantive question, the Defendant sought a declaration of compliance with PD 47 paragraph 8.2 and a strike-out of the non-compliant parts of the Replies. Mr Hughes invited the Court to resolve the remaining Ainsworth issues on the basis that the parties were before the Court.
The Court’s Decision
District Judge Davies accepted the Defendant’s submissions on jurisdiction. The exclusion of PD 47 paragraph 13.7 within the provisional assessment regime did not, in the judge’s view, operate as a prohibition on applications as such. The Court’s general case management powers under CPR 3.1(2)(k) and (m) remained available, and the provisional assessment regime governed the method of assessment rather than removing the Court’s broader procedural jurisdiction.
However, the judge declined to exercise that jurisdiction. The application was dismissed on the basis that it was not appropriate, as a matter of discretion, to determine the remaining issues in advance of the provisional assessment. The judge’s reasoning was rooted in the purpose and design of the provisional assessment regime, which was introduced following the recommendations of Sir Rupert Jackson to provide a proportionate and self-contained mechanism for resolving lower-value costs disputes, and to avoid the proliferation of interim hearings and associated expense that had previously characterised detailed assessment proceedings.
The regime proceeds on the basis that disputes as to quantum, reasonableness and proportionality are to be addressed through Points of Dispute and Replies, with the assessing judge well placed to deal with issues concerning the presentation and substance of those documents. The judge held that the Court should approach applications to intervene prior to formal provisional assessment with caution, since permitting such applications risks undermining the very purpose of the regime. The existence of jurisdiction did not mean that it should be exercised.
The Claimant’s concession on the admissibility of the Excel spreadsheet was significant. What remained were specific Ainsworth disputes in relation to Points 7, 15 and 20. Those issues, insofar as they concerned the level of detail or the merits of individual items, were matters for the judge conducting the provisional assessment. The Defendant sought, in substance, to pre-empt that evaluative exercise, which was precisely what the provisional assessment regime was designed to avoid. In light of the spreadsheet concession, there was a structured mechanism available (namely, the provisional assessment process itself) to resolve the remaining issues, and there was no demonstrated necessity for the Court to intervene at that stage.
The judge declined Mr Hughes’s invitation to determine the remaining Ainsworth issues, stating that he declined to do so as a matter of principle. Costs had already been incurred on the application, and they were not insignificant. It was not inevitable that there would be an oral review. The Court was required to have regard to the need to deal with cases at proportionate cost, which applied with particular force in costs litigation.
To entertain the application in circumstances where the dispute was suitable for provisional assessment, particularly in light of the concession made, would set an unwelcome precedent. It would encourage parties to bring interim challenges routinely, seeking to litigate issues by instalments which the rules intend to be resolved in a single, streamlined process. That would undermine the provisional assessment regime, increase costs disproportionately, and place additional burdens on court resources. That would not be consistent with the overriding objective.
The judge added for completeness that he was not persuaded that the application when mooted crossed the line into an abuse of process in the strict sense, given that he had accepted Mr Hughes’s submissions on jurisdiction. The issue over admissibility of the Excel spreadsheet schedule was not plainly unarguable when foreshadowed in correspondence, but its continued pursuit following the concession (before the application was issued, as Mr Hood pointed out) as to admissibility of the Excel spreadsheet schedule rendered it disproportionate.
The Claimant’s costs lawyers were directed to file Amended Points of Reply to reflect the Excel spreadsheet concession by 4.00 p.m. on 6 May 2026, and to re-file the N258 in the County Court at Derby by 4.00 p.m. on 27 May 2026. The Defendant’s application was dismissed. The Defendant was ordered to pay the Claimant’s costs of the application, summarily assessed at £11,220.00, to be paid by 4.00 p.m. on 6 May 2026.
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