King's / Queen's Bench Division of the High Court

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

Fecha: 03-Jul-2025

Ground 1

67.

Under Ground 1, the Appellant argues that the Judge’s refusal to strike out Point 23 failed to give proper effect to the correct interpretation of PD 47, paragraph 8.2(b) and in doing so, wrongly applied Ainsworth.

68.

In Ainsworth,Point 10 of Mr Ainsworth’s Points of Dispute, also reflecting time on documents, contained points that were “general in nature”, provided a “general overview” that was “not exhaustive” and simply stated that “all items were disputed”. They “did not contain cross references to the numbers of the items disputed on any particular grounds” and “did not state why any item on the bill was disputed”. On that basis, Asplin LJ concluded that Point 10 was not compliant with paragraph 8.2(b) and that the Chief Master’s decision to strike it out was justified: [6] and [42]-[44].

69.

Mr Mason relied on several other decisions in which Points of Dispute were struck out for non-compliance or where it was held on appeal that this course should have been followed:

(i)

O’Sullivan, where HHJ Gosnell concluded that Points 7.1 and 7.2 in the respondent’s Points of Dispute should have been struck out by the District Judge because although they made proposals as to the appropriate hours per different grade of fee earner, they “did not give the appellant a fair opportunity to discern the nature and grounds of the dispute in respect of the various entries on the schedule which were not identified in any way either as unreasonable in amount or unnecessarily incurred” and failed to “set out the nature and the grounds of the dispute”: [7], [8], [52] and [54];

(ii)

St Francis, where elements of Points of Dispute which linked each item back to certain preliminary points but which were otherwise not particularised were struck out by Costs Judge Leonard: [38]-[40] and [112]; and

(iii)

Christodoulides v CP Christou LLP [2025] EWHC 214 (SCCO), where, subject to some limited exceptions, Points of Dispute which were “prolix…discursive…and unfocused”, “[did] not identify the items in dispute”, “[did] not identify, or least not in any coherent or comprehensible fashion, what reductions in costs the points raised are said to generate, and why” and which were “in no way cured or ameliorated” by written submissions provided just before and during the detailed assessment hearing were struck out by Deputy Costs Judge Roy KC: [35], [40] and [43].

70.

In Ainsworth one of the reasons why the strike out was considered appropriate was that Mr Ainsworth had had 5 months’ notice that his opponent considered that Point 10 was defective for want of itemised points of dispute, but had failed to amend it: [6] and [44]. Similarly in O’Sullivan, HHJ Gosnell acknowledged that the strike out produced a rather draconian result, but, citing Ainsworth at [44], observed that the party in question had had “ample opportunity” to seek to amend the Points of Dispute to make them compliant. Their failure to do so had presented the District Judge with a “stark choice”.

71.

Despite Mr Lyons’ attempts to persuade me otherwise, Point 23 of the Respondent’s Points of Dispute was not compliant with paragraph 8.2(b) or Ainsworth. Point 23 made general assertions without indicating which item they related to. It failed to identify the specific items in the Bill of Costs which were challenged and make clear in each case the reasons why the individual items were in dispute. Accordingly, Point 23 did not comply with the requirements from paragraph 8.2(b) and Ainsworth at [37]-[38] that it set out “specific points, stating concisely the nature and grounds of dispute” and to ensure that the opposing party could determine “precisely” what was in dispute and why.

72.

In my judgment Point 23 was directly comparable to the contentious Points of Dispute in Ainsworth and Christodoulides and even less specific than those in O’Sullivan and St Francis.

73.

Indeed, 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.

74.

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”.

75.

Here, the only proper answer to that binary question was that the Points of Dispute were not compliant with paragraph 8.2(b) or Ainsworth. However, this finding is not sufficient for the Appellant to succeed on Ground 1, for the following reasons.

76.

First, I cannot see that the Judge ever specifically held that Point 23 was compliant. Rather, his focus was on whether any defects in it could be “cured” by the annotated document schedule.

77.

Second, if, as appears to be the case, the Judge didconsider that Point 23 was not compliant, that was not the end of the matter: whether to proceed to strike it out was an evaluative, discretionary question that was inextricably linked with the similarly evaluative, discretionary question of whether to permit the variation to Point 23 which the Respondent sought to effect through the annotated document schedule. I return to this issue at [114] below.