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

No transcript of the hearing on 5 August 2024 or the first part of the hearing on 6 August 2024 is available, in part due to poor audio recording. However, Mr Mason’s later Skeleton Argument on costs indicates that during this phase of the hearing, the Judge determined preliminary points 1-2 and 4 and general points 5 to 22 and 24 from the Points of Dispute. Mr Lyons took no issue with this proposition.

In the latter part of the 6 August 2024 hearing, the Judge heard submissions on the key remaining issue, namely the contentious Point 23.

Mr Mason invited the Judge to strike out Point 23 as non-Ainsworth compliant and to refuse to permit the Respondent to rely on the annotated document schedule. None of his submissions have been transcribed but it appears from later in the transcript that he referred to, at least, Edinburgh v Fieldfisher LLP [2020] EWHC 862 (QB): see [98] below.

The transcript begins part-way through Mr Lyons’ submissions. He emphasised that whether or not to strike out Point 23 was a matter for the Judge’s discretion, which was an “unfettered” one and could involve marking the Judge’s displeasure through costs orders. He submitted that a strike out would be a “more than…heavy-handed approach”: p.3D-H of the transcript. He advanced as the reason for the delay in serving the annotated document schedule that the parties had been in negotiations and had hoped to avoid the need for the detailed assessment hearing: p.4B-D.

In reply, Mr Mason emphasised that it was not possible to discern from the annotated schedule how the two new figures for the total number of hours offered had been calculated, or the number originally proposed in Point 23; and referred to a case the name of which was not captured by the transcriber, but which was almost certainly Wazen v Khan [2024] EWHC 1083 (SCCO): p.7B-D. He confirmed the difficulties he would be in during the hearing in responding to the original Point 23 or the schedule, to which there had been no time to draft any reply: p.7F-8E.

The Judge asked counsel to clarify whether there was any correspondence showing that the Appellant had chased the Respondent for the schedule referred to in Point 23. Having taken instructions to this effect, they confirmed that there was not: p.8E-9D.

The Judge then proceeded to give an ex tempore judgment explaining that he was declining to strike out Point 23 of the Respondent’s Points of Dispute and was going to allow the Respondent to rely on the annotated schedule, adjourning the detailed assessment for a third hearing day.