Points Of Dispute Must Identify Specific Items Under Challenge

WARD V RAI [2025] EWHC 1681 (KB)

In Ward v Rai [2024] [2025] EWHC 1681 (KB), the court addressed compliance with Practice Direction 47, para. 8.2(b) in detailed assessment proceedings, focusing on whether the Respondent’s Points of Dispute sufficiently identified specific challenges to the Claimant’s Bill of Costs. The appeal arose from Deputy Costs Judge Friston’s refusal to strike out Point 23 of the Respondent’s Points of Dispute, which generically disputed 134.1 hours claimed for document work without itemising objections, and his subsequent allowance of a late-served annotated schedule two working days before the hearing. Mrs Justice Hill held that Point 23 failed to meet the mandatory requirements of para. 8.2(b) as interpreted in Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178, lacking specificity and clear grounds for dispute. While the Judge’s discretion under PD 47, para. 13.10(2) to permit variations was acknowledged, the court found its exercise flawed, as the late service caused unnecessary delay and costs, contrary to the overriding objective. The court rejected the Respondent’s argument that settlement negotiations justified the delay, noting the Appellant had no duty to chase the annotated schedule (applying Barton v Wright Hassall LLP [2018] UKSC 12). Ground 2 (alleged misdirection on a “broad-brush” assessment) was dismissed, as the Judge had not precluded line-by-line scrutiny. The appeal was allowed, with the court emphasising strict compliance with PD 47 to avoid ambush tactics and ensure proportionality in costs disputes.

...it is relevant that the Respondent had always made clear that a further document schedule would be provided to support Point 23; and that when the schedule was provided, it set out specific objections to individual items for different reasons and arrived at a different, lower total figure, of 58.5 hours and an alternative case of 58.8 hours. Both these actions by the Respondent indicate a tacit acceptance that without the schedule, the Points of Dispute were not compliant.

Citations

Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 Points of dispute must identify general and specific objections with sufficient clarity and conciseness to enable the receiving party and the court to discern precisely the nature and grounds of the dispute. Wazen v Khan [2024] EWHC 1083 (SCCO) Points of dispute in party-party assessments must comply with Ainsworth, requiring specific identification of challenged items and reasons to support a fair and efficient assessment process. St Francis Group 1 Ltd & Ors v Kelly & Anor [2025] EWHC 125 (SCCO) A costs judge may strike out points of dispute that fail to sufficiently identify the items objected to and the grounds of challenge, as failing to do so undermines fair notice and efficient case management. O’Sullivan v Holmes and Hills LLP [2023] EWHC 508 (KB) Points of dispute that lack itemisation and proper particularisation deprive the receiving party of a fair opportunity to respond and are liable to be struck out under the applicable rules. Edinburgh v Fieldfisher LLP [2020] EWHC 862 (QB) A variation to points of dispute made shortly before a hearing may be disallowed under PD 46 or 47 to prevent ambush and ensure proceedings remain fair and proportionate. Celtic Bioenergy Ltd v Knowles Ltd [2022] EWHC 1223 (QB) The discretion to admit variations under PD 47.13.10 must be exercised with caution; a costs judge may disallow a late-filed variation where the timing or content risks unfairness or disrupts the streamlined nature of detailed assessment. Christodoulides v CP Christou LLP [2025] EWHC 214 (SCCO) Points of dispute that are unfocused, do not identify disputed items, and fail to explain the basis for proposed reductions may properly be struck out as non-compliant with PD 47. Barton v Wright Hassall LLP [2018] UKSC 12 A party is under no duty to assist their opponent with procedural compliance and cannot be faulted for declining to alert the opposing side to their own failure to take required steps. Woodward & Anor v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 The duty to further the overriding objective does not extend to alerting an opponent to their procedural default, absent a specific obligation to do so by court rule or order.

Track allocation housing disrepair CPR 46.13 settlement sum costs restriction SCCO

MRO fee markup cap 25% detailed assessment personal injury Senior Courts Costs Office

Security for costs refused CPR 25.27 very high probability success excessive estimate King's Bench

IPEC scale costs transfer Patents Court PD 30 para 9.2 costs caps Court of Appeal

Costs budget variation CPR 3.15A promptness significant development unfair prejudice Chancery Division

Costs budgeting inter partes proportionality high hourly rates AI disclosure Patents Court CPR 3E

Beneficiary personal liability section 71(3) Solicitors Act 1974 indemnity costs VAT self-supply SCCO

Summary assessment indemnity costs unless order payment on account disclosure default Chancery Division

Provisional assessment set aside CPR 3.1(7) points of dispute filing duty PD 47 para 14.3 SCCO

Fixed recoverable costs police claims CPR 26.9(10)(e) intentional tort exemption

Key Points

Practice Direction 47, paragraph 8.2(b) requires that Points of Dispute in detailed assessment proceedings must identify specific items in dispute and concisely state both the nature and grounds of each objection; generalised criticisms without proper particularisation are non-compliant. [14–16, 71–74]
A Costs Judge possesses a discretion under CPR 3.4(2)(b) and (c) to strike out Points of Dispute which fail to comply with applicable rules or practice directions, where such failure is likely to obstruct the just disposal of proceedings. [17–18]
The power to vary Points of Dispute under Practice Direction 47, paragraph 13.10(2), is subject to the court’s discretion to disallow a variation or to permit it only on conditions; this discretion must be exercised in accordance with the overriding objective, including considerations of fairness, proportionality, and promptness. [43, 100–105, 116]
Where a paying party introduces a substantive variation to Points of Dispute shortly before a detailed assessment hearing, the variation may be disallowed if late service prejudices the receiving party and undermines the efficient conduct of the assessment; awareness of the need to raise points earlier is a relevant consideration. [24, 70, 126–127]
Determining whether to allow a late variation or strike out a defective Point of Dispute involves evaluating compliance with procedural rules, the degree of prejudice caused, the stage of proceedings, and whether permitting the amendment is consistent with the need to deal with the case justly and within the streamlined purpose of the detailed assessment regime. [114–131]

“In O’Sullivan at [36] and St Francis at [49] it was accepted that the question of whether Points of Dispute are compliant or not is a binary question, rather than a matter of discretion: as HHJ Gosnell observed in O’Sullivan at [36], it is “…not a situation where a number of different responses [are] available…some of which might be considered objectively justifiable…Either the Points of Dispute [are] sufficient to comply with the Practice Direction or they were not”.”

Key Findings In The Case

Point 23 of the Respondent’s Points of Dispute, which challenged a large claim for time spent on documents, did not identify specific items or state the nature and grounds of each objection with sufficient particularity, and was thus not compliant with Practice Direction 47, paragraph 8.2(b) or the principles set out in Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 [71–74, 114(i)].
Although the Respondent had been aware since 4 January 2024 that the Appellant regarded Point 23 as non-compliant, no effort was made to amend it or provide proper particulars until just two working days before the detailed assessment hearing, when an annotated document schedule was served for the first time [24, 28, 126].
The annotated schedule introduced new and specific objections to individual time entries along with substantially revised figures for the time claimed, representing a substantive variation to the original Points of Dispute which, if relied upon, required the exercise of the court’s discretion under Practice Direction 47, paragraph 13.10(2) [28, 73, 109–110].
The judge held that the Respondent’s conduct in serving the annotated schedule so late resulted in an unnecessary adjournment of the detailed assessment hearing, which would otherwise have concluded within its original two-day listing; the adjournment gave rise to additional delay and cost [29, 44, 119–125, 129].
The court ultimately found that the deputy costs judge had erred in permitting the Respondent to rely on the late-served amended schedule and in declining to strike out the defective Point 23, as doing so failed to enforce compliance with rules and undermined the overriding objective, leading to the allowance of the appeal [132–135].

“The decisions in Ainsworth, the other authorities summarised at [69] above, Edinburgh and Celtic are, of course, fact-specific. However, they illustrate the importance attached to the mandatory elements of paragraph 8.2(b) and the purpose of the detailed assessment procedure. So does the fact that Mr Lyons was not able to take me to a single other case in which a substantial variation to Points of Dispute, this late in the day, has been permitted.”

Background

The appeal arose from a detailed assessment of costs following the settlement of personal injury proceedings. The underlying claim concerned a road traffic accident on 18 September 2019 between Mr Paul Ward (the Appellant/Claimant) and Mr Gagandeep Rai (the Respondent/Defendant). The Respondent admitted liability for the accident, though causation and quantum remained disputed. The substantive proceedings were settled on 11 January 2023 by way of a Part 36 offer for £546,984.

On 3 August 2023, the Appellant commenced detailed assessment proceedings. Item 39 of the Appellant’s Bill of Costs claimed 134.1 hours for work done on documents, itemised across 24 pages in Schedule 2 to the Bill, comprising 418 individual entries detailing dates, nature of work, fee earner, and time spent.

The Respondent served Points of Dispute on 30 August 2023, advancing 25 points. Point 23 challenged Item 39, making various general criticisms about excessive time claimed, unnecessary administrative entries, and duplicative work. Crucially, Point 23 stated that the Respondent would “rely on an annotated documents schedule of objections” but offered a reduction to 68 hours 12 minutes without identifying specific challenged items or providing detailed grounds.

The Appellant served Replies on 4 January 2024, arguing that Point 23 should be dismissed as non-compliant with Practice Direction 47, paragraph 8.2(b), citing Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178. The Appellant contended that the Point of Dispute contained no specific challenges, failed to identify bill entries, and lacked the mandatory nature and grounds of dispute. Despite this objection, the Appellant offered 130 hours for Item 39.

A two-day detailed assessment hearing was listed for 5-6 August 2024. At approximately 4:15pm on 31 July 2024, the Respondent filed and served the annotated document schedule referenced in Point 23. This schedule, for the first time, identified specific items in dispute and categorised objections, offering a primary case of 58.5 hours and an alternative of 58.8 hours.

During the hearing on 5-6 August 2024, Deputy Costs Judge Friston determined various preliminary and general points before addressing the contentious Point 23. The Judge declined to strike out Point 23 and permitted the Respondent to rely on the late-served annotated schedule, adjourning the assessment to a third day. The adjourned hearing took place on 8 November 2024, where the Judge assessed the Appellant’s Bill at £89,032.62 with £8,234.91 in interest.

Costs Issues Before the Court

The primary costs issue before Mrs Justice Hill was whether Deputy Costs Judge Friston had erred in his case management decisions regarding Point 23 of the Respondent’s Points of Dispute. This encompassed two interrelated questions: first, whether Point 23 should have been struck out for non-compliance with Practice Direction 47, paragraph 8.2(b) and the principles established in Ainsworth; and second, whether the Judge was correct to permit the Respondent to rely on the annotated document schedule served just two working days before the detailed assessment hearing.

The appeal engaged fundamental principles about the conduct of detailed assessment proceedings under CPR Part 47. Central to the dispute was the interpretation and application of paragraph 8.2(b) of Practice Direction 47, which requires Points of Dispute to be “short and to the point” and to “identify specific points, stating concisely the nature and grounds of dispute.” The court had to consider whether Point 23’s general assertions without itemisation satisfied these mandatory requirements.

A further issue concerned the proper exercise of discretion under paragraph 13.10(2) of Practice Direction 47, which permits the court to disallow variations to Points of Dispute or allow them subject to conditions, including costs sanctions. The court needed to determine the scope of this discretion and whether the Judge had exercised it in accordance with the overriding objective.

The appeal also raised questions about the duties of parties in detailed assessment proceedings, specifically whether the Appellant had any obligation to chase the Respondent for the promised annotated schedule, and whether the late service of that schedule constituted an “ambush” warranting its exclusion.

The Parties’ Positions

The Appellant advanced five grounds of appeal, with grounds 1-3 challenging the refusal to strike out Point 23 and grounds 4-5 challenging the permission to rely on the schedule. On Ground 1, the Appellant argued that Point 23 failed to comply with paragraph 8.2(b) as interpreted in Ainsworth, making only general assertions without identifying specific items or stating why individual items were disputed. The Appellant relied on several authorities where non-compliant Points of Dispute had been struck out, including O’Sullivan v Holmes and Hills LLP [2023] EWHC 508 (KB), St Francis Group 1 Ltd & Ors v Kelly & Anor [2025] EWHC 125 (SCCO), and Christodoulides v CP Christou LLP [2025] EWHC 214 (SCCO).

Regarding Ground 2, the Appellant contended that the Judge misdirected himself by finding that a “fairly broad-brush assessment” could have been conducted based on Point 23 alone. The Appellant argued this was inappropriate in “detailed” assessment proceedings where the paying party has the right to descend into whatever level of detail they wish.

On Ground 3, the Appellant submitted that the Judge wrongly criticised the Appellant for not chasing the Respondent for the annotated schedule. Relying on Barton v Wright Hassall LLP [2018] UKSC 12 and Woodward & Anor v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985, the Appellant argued there was no duty to assist an opponent, as this could deprive a party of legitimate tactical advantages.

The Respondent argued that whether to strike out Point 23 was within the Judge’s discretion, which was “unfettered” and could involve marking displeasure through costs orders. The Respondent explained the delay in serving the annotated schedule as being due to ongoing settlement negotiations. Mr Lyons submitted that the types of objections in the schedule were “fairly obvious” to any costs practitioner and that many points were anticipated in the original Point 23. He emphasised that the Judge had wide powers under paragraph 13.10(2) to allow variations subject to conditions.

On the duty to chase issue, the Respondent supported the Judge’s view that there should have been liaison between the parties to ensure proper preparation for the assessment. The Respondent argued that both parties knew a further document was required and both were at fault for not ensuring it was available earlier.

The Court’s Decision

Mrs Justice Hill allowed the appeal, finding that Deputy Costs Judge Friston’s refusal to strike out Point 23 and his decision to allow reliance on the annotated schedule were wrong. The court held that Point 23 was not compliant with paragraph 8.2(b) of Practice Direction 47 or the principles in Ainsworth, as it made only general assertions without indicating which items they related to and failed to identify specific items in the Bill of Costs with clear reasons for dispute.

On Ground 1, whilst the court found Point 23 non-compliant, it noted the Judge had not specifically held it was compliant but rather focused on whether defects could be “cured” by the annotated schedule. The court recognised that whether to strike out non-compliant Points of Dispute involved an evaluative, discretionary question inextricably linked with whether to permit the variation through the annotated schedule.

Regarding Ground 2, the court dismissed this ground, finding the Judge had not misdirected himself. The Judge had recognised that detailed assessment proceedings entitled parties to a line-by-line approach and had not suggested conducting the assessment on a broad-brush basis. Rather, he was observing that the Appellant had been provided with sufficient information to understand broadly what case was being made.

On Ground 3, concerning the duty to chase, the court held it could not fairly criticise the Judge on appeal for this finding as the authorities on which the Appellant relied (Barton and Woodward) had not been raised before the Judge at the relevant time. Applying Allen v Bloomsbury Publishing Limited [2011] EWCA Civ 943, the court found it would be wrong to criticise a judge for failing to consider a point not raised with him.

The court upheld the Judge’s characterisation of his powers under paragraph 13.10(2) as “very wide”, finding this consistent with authorities such as Edinburgh v Fieldfisher LLP [2020] EWHC 862 (QB) and Celtic Bioenergy Ltd v Knowles Ltd [2022] EWHC 1223 (QB). However, the court found the Judge had failed to exercise these powers in accordance with the overriding objective.

Crucially, the court determined that the only reason the detailed assessment went into a third day was because the Judge declined to strike out Point 23 and allowed reliance on the schedule. The Respondent had been on notice of the Appellant’s Ainsworth objection for seven months but took no remedial steps until two working days before the hearing. The reason given for delay – ongoing settlement negotiations – was found to be circular, as settlement was more likely if the Appellant understood the detailed case against him.

The court concluded that the Judge’s decision failed to give sufficient weight to the requirements of paragraph 8.2(b) and Ainsworth, and failed to ensure the paragraph 13.10(2) power was exercised in accordance with the overriding objective of dealing with cases “justly and at proportionate cost”. The additional costs and delay caused by the third day of assessment were inconsistent with saving expense, dealing with cases expeditiously, and enforcing compliance with rules and practice directions.

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