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

The combined effect of my findings from the preceding paragraphs is that the Judge:

It remains necessary to consider the Appellant’s residual, overarching argument from Grounds 1 and 5 to the effect that the Judge’s approach was wrong, and involved a failure to give proper effect to paragraphs 8.2(b) and 13.10(2).

Edinburgh and Celtic make clear that in exercising the paragraph 13.10(2) powers, a judge must seek to further the overriding objective, including that cases should be dealt with “justly and at proportionate cost”: [104] above. I accept Mr Mason’s submission that as part of this exercise, regard must be had to the fact that detailed assessment is intended to be a streamlined process to assist the parties in negotiating an agreed sum in settlement of a claim for costs, underpinned by mandatory requirements such as those in paragraph 8.2(b): see [9] and [15] above. I accept this submission because in seeking to further the overriding objective, it is necessary for any judge to have regard to the nature of the hearing and issues in hand.

Mr Lyons sought to persuade me that in taking the course he did, the Judge had in mind that it was always going to be necessary for the detailed assessment to go into a third day, ie. that there was going to have been an adjournment in any event. He referred to the Judge’s observation that there was “inevitably going to have to be an adjournment”: see [24] of his judgment at [43] above. He argued that the need for an adjournment had come about because of the issues with the Appellant’s bundle.

I do not consider that the evidence supports this assertion. Rather, I prefer Mr Mason’s analysis, to the effect that the adjournment was only necessitated by the Respondent’s conduct with regard to Point 23 and the late schedule.

In my judgment, when [24] is read in full, it is clear that the Judge was using the word “inevitably” in the context of him permitting the Respondent to rely on Point 23 alone or to rely on Point 23 and the schedule: it was these two scenarios which he concluded could not fairly take place on 6 August 2024 and would, “inevitably”, need to be dealt with at further hearing: see [24] and [25] of his judgment at [43] above.

Accordingly, the Judge was not saying that if Point 23 was struck out and the schedule was disallowed, an adjournment would still be required. Indeed, the hearing on 5-6 August 2024 had addressed all the issues on the detailed assessment save for that relating to Point 23: see [29] above.

It follows that if the Judge had decided to strike out Point 23 and disallow the schedule, the assessment would have concluded on 6 August 2024.

Moreover, it is clear that the issues over the Appellant’s bundle were not determinative on 6 August 2024. Insofar as there were issues with the bundle on 6 August 2024, they only manifested themselves in the ways in which Mr Mason and the court were going to struggle to respond to Point 23 and the schedule, not participate in the other aspects of the assessment process: see the Judge’s comments at [24] and [25] of his judgment at [43] above.

The Judge specifically held that his criticism of the Appellant’s solicitor in this regard “pale[d] into insignificance” compared to his frustration at the parties’ lack of communication about the schedule; and the issues over the bundle did not prevent all the issues on the detailed assessment save for that relating to Point 23 being concluded on 6 August 2024 (notwithstanding the Judge and Mr Lyons mis-remembering this, as noted at [52] above).

This point is underscored by the Judge’s 8 November 2024 judgment on costs, where he observed that the issues over the schedule had led to “an unnecessary adjournment”: see [11] of the costs judgment at [58] above.

For these reasons I do not consider that the Judge’s decision to permit the Respondent to rely on Point 23 and the schedule can be buttressed by the argument that there was a need for an adjournment in any event. The only reason the detailed assessment went into a third day was because the Judge declined to strike out Point 23 and allowed the Respondent to rely on the schedule.

The Respondent had been on notice that the Appellant’s position was that Point 23 was not compliant with paragraph 8.2(b) or Ainsworth since 4 January 2024, some 7 months before the detailed assessment hearing: see [24] above. The Respondent had taken no steps at all to remedy the position until 2 working days before the hearing. This breach of paragraph 8.2(b) is even more egregious than that in Ainsworth, where there had been a period of 5 months’ notice of the issue, without it being remedied; and that in Celtic where the Supplementary Points of Dispute had been provided around 1 month before the hearing: see [50] and [101] above.

The reason given by the Respondent for the delay in serving the schedule – namely that he hoped that the parties would achieve settlement and avoid the need for a hearing – was, with respect, entirely circular: settlement was surely much more likely to be achieved if the Appellant understood the case against him in detail. Indeed, as Asplin LJ observed in Ainsworth at [38], that is “the very purpose” of Points of Dispute and thus of paragraph 8.2(b): see [16] above.

The Appellant had sought a 2 day listing for the detailed assessment hearing. But for the issues over the schedule, that would have been adequate.

The Judge’s decision meant that the detailed assessment process continued into a third day, leading to additional costs and delay. It is hard to see how that was consistent with the requirement in the overriding objective to deal with the case “justly and at proportionate cost”. I say this bearing in mind that this requirement includes “saving expense”, dealing with cases “expeditiously” and “enforcing compliance with rules, practice directions and orders”: CPR 1.2(2)(b), (d) and (g). The streamlined nature of detailed assessment proceedings was also relevant: see [116] above.

The overriding objective, of course, requires that cases be dealt with “fairly”, but here, the unfairness to the Respondent that would be caused by Point 23 being struck out and the schedule disallowed was entirely of his own making. It has been specifically recognised in in O’Sullivan and Ainsworth that parties conducting the detailed assessment process in such a way face those risks: see [70] above.

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.

I have been very conscious in my deliberations of the limited role for an appellate court when considering an appeal against a discretionary case management decision, as reflected in the authorities summarised at [62]-[65] above. I have nevertheless concluded that the Judge’s refusal to strike out Point 23 and his decision to allow the Respondent to rely on the schedule was wrong.

For the reasons set out at [114]-[131] above, the Judge’s decision failed to give sufficient weight to the requirements of paragraph 8.2(b) and Ainsworth. It failed to ensure that the paragraph 13.10(2) power was exercised in accordance with the overriding objective as required by Edinburgh and Celtic.

In my judgment, therefore, the Judge erred in principle in these various respects and did not balance the various factors “fairly in the scales”, such that it is appropriate for this court to intervene.

These aspects of Grounds 1 and 5 therefore succeed.