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

I consider Ground 5 first because it relates to the overall legal approach the Judge took to the question of whether to permit the Respondent to rely on the schedule, whereas Ground 4 is more fact-specific argument about the issue.

Under Ground 5, the Appellant contends that the Judge was wrong to find that PD 47, paragraph 13.10 provided a Costs Judge with “very wide powers”: see [23] of his judgment at [43] above. It is argued that this statement did not reflect the interpretation of paragraph 13.10(2) set out in the authorities, which make plain there are limits on the power inherent in it.

In Edinburgh v Fieldfisher LLP [2020] EWHC 862 (QB), Chamberlain J refused permission to appeal against a judge’s decision to disallow supplemental Points of Dispute which were referred to less than 3 working days before a detailed assessment hearing and produced 90 minutes before the hearing: [6], [8] and [24].

In so doing, he considered PD 46, paragraph 6.15 which addresses the variation of Points of Dispute in solicitor/client proceedings in the same way as paragraph 13.10: as with paragraph 13.10(2), paragraph 6.15 provides that while permission is not required to vary Points of Dispute but 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.”

At [15] Chamberlain J held as follows:

“I accept…that the default position under that paragraph is that parties may vary points of dispute if they so wish. That default position is, however, 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 to the last minute to file supplemental points of dispute raising points not previously heralded. This would be productive of unfairness. Paragraph 6.15 does not prescribe how the discretion to disallow supplemental points of dispute should be exercised, but the overriding objective (enabling the court to deal with disputes of this kind) “justly and at proportionate cost” should be borne in mind”.

In Celtic Bioenergy Ltd v Knowles Ltd [2022] EWHC 1223 (QB) Foster J upheld a judge’s decision to disallow Supplementary Points of Dispute provided around 1 month before the detailed assessment hearing: [13], [15] and [52]. At [16], she accepted the characterisation of the paragraph 13.10 power advanced by counsel for the Appellant (coincidentally, the Judge in this case) as follows:

“…the Practice Direction is expressed in terms of a discretion to exclude, and thus the default position is that documents will be admitted. The discretion to exclude protects the other party from an ambush”.

At [35], she returned to this theme:

“I do not accept, as was sought to be said at one point by the Paying Party that there is a presumption under the rules that documents will be accepted, no matter how late nor how many new points they raise. The rules, understandably, give a wide discretion to the costs judge to decide, in all the circumstances of the case, whether it is in furtherance of the overriding objective, namely, to decide cases justly, that the particular document ought to be received. It cannot be gainsaid that there will come a time when it is…“just too late”…”.

In my judgment Edinburgh and Celtic do not support the Appellant’s criticisms of the Judge.

The combined effect of Edinburgh and Celtic is that despite the permissive nature of paragraph 13.10(1), there is no presumption that variations will be permitted; that the powers to disapply variations or permit variations on conditions can be used to protect the other party from being ambushed; and that the CPR provides no guidance as to how the power should be exercised beyond the fact that it must be exercised in accordance with the overriding objective, including that cases should be dealt with “justly and at proportionate cost”.

Accordingly, the Judge was not wrong to say that paragraph 13.10 permitted him to “either allow or disallow an amendment”, “to impose conditions, including conditions as to payments of costs” and to impose conditions on costs at a later stage. These were all accurate statements.

He was therefore not wrong to say that paragraph 13.10(2) afforded him “very wide powers”: on the contrary, his words chime closely with Foster J’s reference in Celtic at [35] to “a wide discretion”.

This aspect of Ground 5 therefore fails. I return to the second aspect of Ground 5 – namely whether or not the Judge nevertheless misapplied the paragraph 13.10(2) power – at [114] below.