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

Ground 4 takes issue with the Judge’s finding, in permitting the Respondent to rely on the schedule, that the service of it did not involve an “ambush”: see [18] of his judgment at [42] above.

Mr Mason argued that Point 23 and the schedule were fundamentally different documents. The former included generalised assertions; the latter took issue with specific items. The lack of any particularity in Point 23 meant that it did not enable the Appellant to anticipate what points would be made in the annotated document schedule. The schedule advanced a fundamentally new cases in terms of the detailed points it made and a different overall figure for hours it offered.

Further, the Respondent had been on notice of the Appellant’s objection to the Points of Dispute, and reliance on Ainsworth, since January 2024. He contended that the Respondent’s conduct, in serving the schedule just 2 working days before the hearing, was the “very definition” of an ambush.

The Judge was plainly critical of the Respondent for the “extremely” and “unacceptably” late service of the schedule: see [9], [16] and [18] of his judgment at [39], [41] and [42] above. However, he took the view that this was not a “typical” ambush situation because the Appellant was aware from the reference to it in the original Point 23 that a schedule was going to be served, and because the Appellant was partly responsible for not chasing for it.

This finding is therefore closely linked with the issues underlyingGround 3. It is not, therefore, one with which it would be fair to interfere on appeal, for the reasons given under Ground 3.

For these reasons, Ground 4 is dismissed.