The Senior Courts Costs Office’s decision in MH v CH (By Her Litigation Friend the Official Solicitor) [2026] EWHC 238 (SCCO) confirms that CPR 3.1(7) remains available to challenge a Provisional Assessment Order where the receiving party failed to file the paying party’s complete Points of Dispute.
Background
This matter arose from detailed assessment proceedings following a costs order made in the Court of Protection. By an order dated 15 December 2023, HHJ Hilder ordered MH to pay 50% of CH’s costs. CH’s solicitors, Irwin Mitchell LLP, prepared a Bill of Costs totalling £19,233.93, which was served on MH on 1 November 2024.
On 22 November 2024, MH served his Points of Dispute by email. These comprised four documents: Precedent G; a Note in Relation to Points of Dispute; an annotated Bill of Costs; and a skeleton argument from a prior Court of Appeal application. Replies were served by CH on 13 December 2024.
On 15 April 2025, CH lodged the N258 bundle with the court to initiate a provisional assessment. It was later accepted by CH’s solicitor, Mr Cruise, in a witness statement dated 21 May 2025, that the bundle omitted two of the four documents comprising MH’s Points of Dispute — the annotated Bill of Costs and the Note — and also omitted MH’s open offer. Mr Cruise conceded the omission was a mistake and that all documents should have been filed.
Unaware of the omission, Deputy Costs Judge Bedford conducted the provisional assessment on 29 April 2025. The resulting Written Reasons repeatedly noted an inability to understand many of the objections. The judge later attributed this difficulty entirely to the absence of the complete documentation. The Provisional Assessment Order (PA Order) was issued the same day.
On 6 May 2025 — within seven days of the PA Order — MH issued an application to set aside the PA Order pursuant to CPR 3.1(7). MH declined to request an oral hearing under CPR 47.15(7). The application was heard on 24 June 2025. During that hearing a discrete question arose as to whether a provisional assessment order is final or interim prior to expiry of the 21-day period in CPR 47.15(7); the judge adjourned to receive written submissions on that point. Written submissions were filed by CH on 23 July 2025 and by MH on 28 July 2025, culminating in this judgment.
Costs Issues Before the Court
The central issue was whether a paying party may apply to set aside a Provisional Assessment Order under CPR 3.1(7) within seven days of its issue, as an alternative to requesting an oral hearing under CPR 47.15(7). Counsel informed the judge that there was no binding authority — indeed no authority at all — on this point, and the judge determined that a written judgment would therefore be of utility. Subsidiary questions included: whether the court’s general case management powers remain available where a specific procedural rule exists; whether the failure to file a complete set of Points of Dispute meant the decision was not a provisional assessment in the sense contemplated by CPR 47.15(7); and, if CPR 3.1(7) was engaged, whether the threshold test was met. The application also raised, but adjourned for later determination, issues of alleged misconduct under CPR 44.11 and whether a prior payment constituted a concluded agreement on costs.
The Parties’ Positions
MH, acting in person, argued the PA Order was null and void because CH had failed to comply with the mandatory requirements of PD 47 para 14.3 by not filing his full Points of Dispute and open offer with the N258 bundle. He submitted CPR 3.1(7) was available and drew analogies with other CPR set-aside mechanisms — including the power to set aside a default costs certificate under CPR 47.12(1) — to support the proposition that the rules provide redress where an order is obtained irregularly. MH contended that CPR 47.15(7) was not engaged because the provisional assessment process had never been properly initiated.
CH, represented by Mr Moss of Counsel, argued that the specific and self-contained code for challenging a provisional assessment was CPR 47.15(7), which required a request for an oral hearing within 21 days. MH’s failure to do so meant the PA Order had become binding. CH submitted that the general power in CPR 3.1(7) could not circumvent this specific rule, relying on the principle of lex specialis and the authorities of Terry v BCS Corporate Acceptances Ltd [2018] EWCA Civ 2422 and Deutsche Bank AG v Unitech Ltd [2016] EWCA Civ 119. In the alternative, CH argued that even if CPR 3.1(7) was available, the PA Order was a final order, the threshold was not met, and the circumstances fell woefully short of exceptional.
The Court’s Decision
Deputy Costs Judge Bedford granted the application and set aside the PA Order.
Availability of CPR 3.1(7)
The judge rejected the submission that CPR 47.15(7) ousted the general case management powers. She held that the two rules could operate cohesively, addressing different types of challenge. CPR 47.15(7) provides a mechanism to review items within a provisional assessment — decisions on hourly rates, individual bill items and the like. These items are defined by the four corners of the Points of Dispute, as illuminated by Ainsworth v Stewarts Law LLP [2020] EWCA Civ and PD 47 para 8.2. A jurisdictional challenge to whether the assessment was correctly constituted at all falls outside the scope of CPR 47.15(7) and may be addressed under CPR 3.1(7). She noted that CPR 3.1(1) expressly provides that the court’s case management powers are available in addition to those granted by specific rules, and that PD 47 para 14.2(2) — which lists the CPR provisions excluded from the provisional assessment regime — does not exclude CPR 3.1.
The authorities of Terry and Deutsche Bank were distinguished on the same ground: each confirmed that a general rule gives way to a specific rule, but that principle has no application where the two rules address distinct questions and operate in tandem.
Failure to File Complete Documents
The judge found that CH’s failure to file the complete Points of Dispute was a material breach of the mandatory obligation in PD 47 para 14.3(e). Critically, the provisional assessment is initiated unilaterally by the receiving party and the paying party has no involvement or control over what is filed. She drew an analogy to the duty of candour in without-notice applications: the duty on the receiving party to file all documents comprising the paying party’s Points of Dispute is stringent. She observed that Points of Dispute spread across multiple documents — including annotated bills and supplementary notes — are the norm rather than the exception in costs practice.
Because PD 47 para 14.3(e) had not been complied with, the resulting decision was not a provisional assessment in the sense contemplated by CPR 47.15(7). The consecutive steps in the workflow from CPR 47.15(4) onwards — including the 21-day period for requesting an oral hearing — were not properly engaged. The time for requesting a compliant oral hearing under CPR 47.15(7) and (8) had not properly begun to run.
Application of the CPR 3.1(7) Test
Applying the principles in Tibbles v SIG PLC [2012] EWCA Civ 518, and having regard to Lewison LJ’s observations in Vodafone Group PLC v IPCom GmbH and Co [2023] EWCA Civ 113, the judge found the threshold for exercising CPR 3.1(7) was met. The facts on which the PA Order was made had been misstated through omission — an incontrovertible fact accepted by CH’s own solicitor. The absence of the documents had axiomatically undermined the basis of the judgment, and the application was made promptly within seven days.
The judge declined to determine whether the PA Order was final or interim, finding it unnecessary to do so. The facts comfortably met the higher test of exceptional circumstances applicable to final orders in any event: the receiving party had failed to comply with a mandatory filing requirement in a without-notice context, the court had proceeded on an incorrect basis and wasted time on a flawed process, and a defaulting party ought not to benefit from its own default where the court has been inadvertently misled and a prompt in-time application has been made. For completeness, the judge further held that even if CPR 47.15(7) had been engaged, the same facts constituted exceptional circumstances within the meaning of that rule.
Case Management Directions
She exercised the power under CPR 47.15(6) to remove the matter from the provisional assessment regime, directing that it proceed to a one-day detailed assessment hearing. She concluded that an oral hearing was likely to be required in any event and it was more proportionate to proceed directly. All outstanding issues — including the CPR 44.11 misconduct application and the question of any concluded costs agreement — were adjourned to that hearing.
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