KA-2024-000232 - [2025] EWHC 1681 (KB)

Chapter 45 of Sir Rupert Jackson’s Review of Civil Litigation Costs: Final Report, 2009 addressed detailed assessment. Certain difficulties with Points of Dispute (as well as points of reply) were identified, as follows:

“2.7

Points of dispute are said to be over-long, therefore expensive to read and expensive to reply to. Points of reply are similarly prolix. Both of these pleadings are in large measure formulaic and are built up from standard passages held by solicitors on their databases. In addition, there are lengthy passages in the points of dispute and points of reply dealing with time spent on documents. It would be better if the points of dispute…concentrated on the reasoning of the bill, not the detailed items…

5.11

Both points of dispute and points of reply need to be shorter and more focused. The practice of quoting passages from well know judgments should be abandoned. The practice of repeatedly using familiar formulae, in Homeric style, should also be abandoned. The pleaders on both sides should set out their contentions relevant to the instant cases clearly and concisely. There should be no need to plead to every individual item in a bill of costs, nor to reply to every paragraph in the points of dispute.”

These conclusions were implemented in amendments to PD 47, paragraph 8.2 so that, for example, practitioners were directed that they “must” follow Precedent G in the Schedule of Costs Precedents rather than merely that they “should” do so. Paragraph 8.2 now reads:

“8.2

Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to this Practice Direction, so far as practicable. They must:

(a)

Identify any general points or matters of principle which require decision before the individual items in the bill are addressed; and

(b)

Identify specific points, stating concisely the nature and grounds of dispute.

Once a point has been identified it should not be repeated but the item numbers where the point arises should be inserted in the left hand box as shown in Precedent G.”

I therefore accept Mr Mason’s submission that the Practice Direction was amended with the policy objective of enforcing compliance with the streamlined procedure for detailed assessment proceedings; and focussing on the reasons for any objections in Points of Dispute.

In Ainsworth at [37], Asplin LJ considered paragraph 8.2 and held as follows:

“37…47PD.8 para 8.2…makes it absolutely clear that points of dispute should be short and to the point and, therefore, focussed. Furthermore, sub-paragraphs (a) and (b) leave no doubt about the way in which the draftsman should proceed. General points and matters of principle which require consideration before individual items in the bill or bills are addressed, should be identified, and then specific points should be made “stating concisely the nature and grounds of dispute.” Such an approach is entirely consistent with the recommendations and observations made in the Review of Civil Litigation Costs: Final Report, 2009 to which we were referred.

38.

Common sense dictates that the 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 the very purposes of such a document. It is necessary in order to enable the receiving party, the solicitor in this case, to be able to reply to the complaints. It is also necessary in order to enable the court to deal with the issues raised in a manner which is fair, just and proportionate.”

At [44], Asplin LJ observed that CPR 3.4(2)(b) and/or (c) enable a Costs Judge to strike out non-compliant Points of Dispute. They provide that the court may strike out a statement of case if it appears to the court “(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings” or “(c) that there has been a failure to comply with a rule, practice direction or court order”.

Although Ainsworth concerned detailed assessment proceedings between solicitor and client governed by CPR 46.10, two recent judgments from the Senior Courts Costs Office confirm the application of Asplin LJ’s observations at [37] and [38] of Ainsworth to detailed assessment proceedings between the parties under CPR 47: Wazen v Khan [2024] EWHC 1083 (SCCO) at [5]-[22] per Deputy Costs Judge Roy and St Francis Group 1 Ltd & Ors v Kelly & Anor [2025] EWHC 125 (SCCO) at [55]-[56], per Costs Judge Leonard. The Judge in this case also accepted that Ainsworth applied to the detailed assessment proceedings between the parties: see [12]-[13] of his judgment, at [40] below. I respectfully agree with all these judges’ conclusions on this issue for the reasons comprehensively set out in Wazen at [5]-[22].

In St Francis, Costs Judge Leonard struck out a number of non-compliant Points of Dispute. At [59]-[61], he summarised the underlying principles as follows:

“59.

First, the receiving party…must have an adequate opportunity to understand which of the items in their Bill of Costs (or breakdown) have been challenged and the grounds of that challenge, so as to be able adequately to prepare a response. Points of Dispute must be prepared in a way which achieves that.

60.

Second, It is not acceptable, at a detailed assessment hearing, for the parties or the court to have to spend time identifying the items in the Bill of Costs that are objected to, or the nature or grounds of the objection. That should be clear from the outset. There must be no element of surprise or “ambush”.

61.

Third, Points of Dispute must be prepared in a way that ensures that a detailed assessment hearing can be managed in a fair, just and proportionate way. For example, it is not open to a paying party to insist that the court trawl through every item in a Bill of Costs to ensure that there is no objection to it. It is for the paying party to raise clear and pertinent points upon which the court can adjudicate.”