The King’s Bench Division’s decision in Ward v Rai [2025] EWHC 1681 (KB) addresses the consequences of serving non-compliant Points of Dispute in detailed assessment proceedings and the limits of a costs judge’s discretion to permit late variations under PD 47, paragraph 13.10.
Background
The underlying claim arose from a road traffic accident on 18 September 2019 involving Paul Ward (the Appellant/Claimant) and Gagandeep Rai (the Respondent/Defendant). Liability was admitted by the Respondent, with causation and quantum remaining in dispute. The claim was settled on 11 January 2023 by way of a Part 36 offer in the sum of £546,984.
Detailed assessment proceedings were commenced by the Appellant on 3 August 2023. The Appellant’s Bill of Costs included Item 39, which claimed 134.1 hours for work done on documents. That work was itemised in Schedule 2 to the Bill, which ran to 24 pages and comprised 418 individual entries describing the date of the work, the nature of the work, the fee earner involved, and the time spent.
On 30 August 2023, the Respondent served Points of Dispute comprising 25 points. Point 23 addressed Item 39 and made a series of general criticisms of the document time claimed—including that extensive and unnecessary time had been claimed by a Grade A fee earner reviewing medical records before expert evidence had been obtained, that time had been claimed for noting receipt of documents, that multiple administrative entries had been included, and that various entries were duplicated. Point 23 stated that the Respondent would “rely on an annotated documents schedule of objections in support” and proposed that document preparation time be limited to 68 hours 12 minutes. Crucially, no specific items from the 418-entry schedule were identified.
On 4 January 2024, the Appellant served Replies to the Points of Dispute. In those Replies, the Appellant challenged Point 23 on the basis that no specific bill entries had been identified and that neither the nature nor the grounds of the dispute were adequately stated. The Appellant cited Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 and indicated that, in the absence of specific areas of reduction being identified, a meaningful response could not be provided. The Appellant nonetheless offered 130 hours for Item 39 in response to the general points raised.
On 26 March 2024, the Appellant filed a request for a two-day detailed assessment hearing. A notice of hearing was issued on 28 May 2024, listing the matter for 5–6 August 2024.
At around 4.15 pm on Wednesday 31 July 2024—technically on the morning of Thursday 1 August 2024—the Respondent filed and served the annotated document schedule that had been referenced in Point 23. This was the first occasion on which specific individual items within Item 39 were identified as being in dispute. The schedule categorised the Respondent’s objections to individual entries under eight headings: duplication; supervision; non-progressive; excessive time claimed; non-contemporaneous file notes; case management discussion; incoming correspondence and routine response out; and lower grade offered, not Grade A work. The schedule advanced a primary case of 58.5 hours and an alternative case of 58.8 hours—figures materially different from the 68 hours 12 minutes proposed in the original Point 23.
The detailed assessment hearing took place over 5–6 August 2024 before Deputy Costs Judge Friston. During the hearing, the Judge determined preliminary points and general points from the Points of Dispute. The contentious issue of Point 23 and the annotated schedule was addressed in the latter part of 6 August 2024. The Judge declined to strike out Point 23 and permitted the Respondent to rely on the annotated schedule, adjourning the assessment to a third day. He indicated that costs consequences would follow and would be addressed at the conclusion of the assessment.
The adjourned hearing took place on 8 November 2024. The Judge conducted a line-by-line assessment of approximately 10% of the constituent parts of Item 39. The remaining 90% was assessed using a broad-brush “coffee break option” suggested by the Judge, whereby the parties took a break and the Judge gave them a provisional view on which they made submissions, with the option of detailed item-by-item assessment still available if they wished. The Bill was assessed in a total sum of £89,032.62 with £8,234.91 in interest.
The Deputy Costs Judge’s Decision on Point 23 and the Schedule (6 August 2024)
Deputy Costs Judge Friston gave two reasons for declining to strike out Point 23. First, he considered that the original Points of Dispute would have allowed there to have been a fairly broad-brush assessment in any event and would have allowed the Appellant to have known the case being made against him and to have responded to it. Second, and “perhaps more importantly,” he found that both parties knew that there should have been a further document and that both parties were significantly at fault for having failed to comply with the overriding objective by not ensuring the schedule was available earlier.
The Judge acknowledged that the schedule was served “unacceptably late, almost to the point that one could say, in other circumstances, that it was an ambush.” However, he concluded that it was not an ambush on the facts because it had been mentioned in Point 23 from the beginning and both parties were significantly at fault for not having ensured it was available when preparing for the assessment.
The Judge considered that PD 47, paragraph 13.10 gave him “very wide powers” to either allow or disallow an amendment and to impose conditions, including conditions as to payment of costs. He concluded that there would inevitably have to be an adjournment because it would be unfair to require the Appellant’s counsel to proceed on the basis that he had to respond to the schedule, but equally unfair to require him to deal with the categories in Point 23 “almost in a vacuum” without the benefit of the schedule. He therefore permitted the Respondent to rely on the schedule but indicated that there would be cost sanctions to be imposed at the end of the assessment.
The Judge noted an issue with the Appellant’s bundles: Bundle 1 contained all the documentary items, while Bundle 2 grouped together attendance notes relevant to the general points of principle. However, the Appellant’s counsel had not been informed until very recently that Bundle 1 contained the entirety of the documents. The Judge stated that his criticism of the Appellant’s solicitor in this regard “paled into insignificance” compared to his frustration at the parties’ lack of communication about the schedule.
The Costs Judgment (8 November 2024)
The Judge then addressed the costs of the detailed assessment. The Respondent had made a Part 36 offer which the Appellant had not beaten. The parties agreed that the Respondent would pay the Appellant’s costs up to the date on which the offer expired (3 July 2024) and that the Appellant would pay the Respondent’s costs thereafter, subject to argument about whether the Respondent should bear the Appellant’s costs of the adjourned hearing in any event.
The Appellant argued that the Respondent’s conduct in serving the annotated schedule so late had led to the need for an adjournment, such that the Respondent should be ordered to pay the Appellant’s costs of the adjourned detailed assessment. The Appellant cited Barton v Wright Hassall LLP [2018] UKSC 12 and Woodward v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 in support of the proposition that while the Appellant was under a duty to assist the court for the purposes of the overriding objective, the Appellant was under no duty to remind the Respondent that they had failed to file the schedule.
The Judge found that while the Respondent was significantly at fault for having served the schedule very late, the Appellant was also at fault. He referred to two matters: first, that the Appellant had not chased the Respondent for the annotated schedule; and second, that it had become apparent during the course of the 6 August hearing that the Appellant’s counsel was unaware that documents he needed were contained in the bundles. The Judge stated—contrary to his earlier finding that the bundle issue “paled into insignificance”—that the bundle issue was “more important” and that had counsel been so informed and had the court dismissed the Ainsworth point (as it did), there would have been no need for an adjournment as the court would have been able to deal with the first items in the documentary schedule.
The Judge therefore declined to award the Appellant his costs of the adjourned hearing and ordered that the Appellant pay the Respondent’s costs from 3 July 2024, subject to a small reduction to reflect the time spent on 6 August 2024 dealing with the annotated schedule.
The Appeal
The Appellant appealed against the Judge’s orders of 6 August 2024, advancing five grounds of appeal. Permission to appeal was granted by Sir Stephen Stewart on 11 March 2025. The appeal was heard by Mrs Justice Hill DBE on 18 June 2025, sitting with Costs Judge Leonard as assessor, and judgment was handed down on 3 July 2025.
The Legal Framework
PD 47, paragraph 8.2 requires that Points of Dispute must be short and to the point, must follow Precedent G, and must identify any general points or matters of principle requiring decision before individual items are addressed. Critically, paragraph 8.2(b) requires Points of Dispute to “identify specific points, stating concisely the nature and grounds of dispute.”
In Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178, Asplin LJ held that paragraph 8.2 makes clear that Points of Dispute should be “short and to the point and, therefore, focussed” and that specific points should be made “stating concisely the nature and grounds of dispute.” Common sense dictates that Points of Dispute must be drafted in a way which enables the parties and the court to determine precisely what is in dispute and why. That is necessary to enable the receiving party to reply to the complaints and to enable the court to deal with the issues raised in a manner which is fair, just and proportionate. Asplin LJ identified CPR 3.4(2)(b) and (c) as the applicable powers enabling a Costs Judge to strike out non-compliant Points of Dispute.
Although Ainsworth concerned solicitor-client assessment proceedings, recent decisions including Wazen v Khan [2024] EWHC 1083 (SCCO) and St Francis Group 1 Ltd v Kelly [2025] EWHC 125 (SCCO) have confirmed that the principles apply equally to detailed assessment proceedings between parties under CPR Part 47.
PD 47, paragraph 13.10 addresses variations to Points of Dispute. While permission is not required to vary Points of Dispute, the court may disallow the variation or permit it only upon conditions, including conditions as to the payment of any costs caused or wasted by the variation. In Edinburgh v Fieldfisher LLP [2020] EWHC 862 (QB), Chamberlain J held that while the default position is that parties may vary Points of Dispute, this is subject to a general discretion to disallow the variation or to allow it upon conditions. This is an important discretion, without which it would be possible for parties to ambush their opponents by waiting until the last minute to file supplemental Points of Dispute raising points not previously heralded. The overriding objective must be borne in mind when exercising this discretion.
Hill J’s Decision
Hill J held that Point 23 was not compliant with PD 47, paragraph 8.2(b) or Ainsworth. Point 23 made general assertions without indicating which items they related to and failed to identify the specific items in the Bill of Costs which were challenged or make clear in each case the reasons why the individual items were in dispute. Point 23 was directly comparable to the contentious Points of Dispute in Ainsworth and Christodoulides v CP Christou LLP [2025] EWHC 214 (SCCO) and even less specific than those in O’Sullivan v Holmes and Hills LLP [2023] EWHC 508 (KB) and St Francis.
Hill J accepted that whether Points of Dispute are compliant is a binary question rather than a matter of discretion. However, she recognised that whether to strike out non-compliant Points of Dispute and whether to permit a variation under paragraph 13.10 were evaluative, discretionary questions that were inextricably linked.
Hill J rejected the Appellant’s argument that the Deputy Costs Judge had misdirected himself by finding that a “fairly broad-brush assessment” could have taken place based on Point 23 alone. She held that the Judge had recognised that it would be inappropriate to carry out the detailed assessment on a broad-brush basis and that his focus was on whether to adjourn the case to allow the Appellant more time to consider how to respond to the annotated schedule. What the Judge was saying was that the Appellant had been provided with sufficient information in the original Point 23 to understand, broadly, what the case against him was.
Hill J also rejected the Appellant’s argument based on Barton v Wright Hassall LLP [2018] UKSC 12 and Woodward v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 that the Judge had been wrong to criticise the Appellant for not chasing the Respondent for the schedule. She acknowledged at [88] that there was “an inherent logic in, and attractiveness to” the submission and that it raised “an interesting issue” about where the duty to assist the court conflicts with the absence of a duty to assist an opponent. However, she held that it would be wrong to criticise the Judge for failing to take into account a point not raised with him at the relevant time, as the evidence strongly suggested that these authorities were not cited to the Judge on 6 August 2024 but only at the costs stage on 8 November 2024.
Hill J accepted that the Deputy Costs Judge was not wrong to say that paragraph 13.10(2) afforded him “very wide powers,” as this chimed closely with Foster J’s reference in Celtic Bioenergy Ltd v Knowles Ltd [2022] EWHC 1223 (QB) to “a wide discretion.” However, she held that Ground 5 raised two distinct aspects: the first (whether “very wide powers” was a correct characterisation) failed; the second (whether the Judge nevertheless misapplied those powers) succeeded.
Hill J concluded that the Judge’s refusal to strike out Point 23 and his decision to allow the Respondent to rely on the schedule was wrong. She held that the Judge’s decision failed to give sufficient weight to the requirements of paragraph 8.2(b) and Ainsworth and failed to ensure that the paragraph 13.10(2) power was exercised in accordance with the overriding objective as required by Edinburgh and Celtic.
Hill J found that the adjournment was necessitated solely by the Respondent’s conduct regarding Point 23 and the schedule, not by issues with the Appellant’s bundle. The hearing on 5–6 August 2024 had addressed all the issues on the detailed assessment save for that relating to Point 23. If the Judge had decided to strike out Point 23 and disallow the schedule, the assessment would have concluded on 6 August 2024. The Judge had specifically held in his 6 August judgment that his criticism of the Appellant’s solicitor regarding the bundle “paled into insignificance” compared to his frustration at the parties’ lack of communication about the schedule, and the issues over the bundle did not prevent all the issues on the detailed assessment save for that relating to Point 23 being concluded on 6 August 2024. The Judge’s later recollection on 8 November that the bundle issue was “more important” was inconsistent with his original finding.
Hill J noted that the Respondent had been on notice that the Appellant’s position was that Point 23 was not compliant since 4 January 2024, some seven months before the detailed assessment hearing, yet had taken no steps to remedy the position until two working days before the hearing. The Respondent’s explanation for the delay—that the parties hoped to settle and avoid a hearing—was, Hill J observed, “entirely circular” because settlement was surely much more likely to be achieved if the Appellant understood the case against him in detail. This breach of paragraph 8.2(b) was even more egregious than that in Ainsworth, where there had been five months’ notice, and that in Celtic, where supplementary Points of Dispute had been provided around one month before the hearing.
The Judge’s decision meant that the detailed assessment process continued into a third day, leading to additional costs and delay. Hill J held that it was hard to see how that was consistent with the requirement in the overriding objective to deal with the case “justly and at proportionate cost,” bearing in mind that this requirement includes saving expense, dealing with cases expeditiously, and enforcing compliance with rules, practice directions and orders. The streamlined nature of detailed assessment proceedings was also relevant.
Hill J concluded that the Judge erred in principle and did not balance the various factors fairly in the scales, such that it was appropriate for the appellate court to intervene. The appeal was allowed.
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