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

At [2]-[6] the Judge set out the procedural history, noting that the Appellant’s Replies had cited Ainsworth.

At [7], he described an issue with the bundles for the hearing, as follows:

“A bundle was prepared on 29 July 2024. To be more accurate, there were multiple bundles that were sent to the court, but two bundles were the important ones, Bundle 1 and Bundle 2. Bundle 1 - we now know - contains all of the documentary items. Bundle 2, however, has been structured in such a way as to group together those attendance notes that the claimant believes are likely to be relevant to the general points of principle made by the defendant in the Points of Dispute. I will not refer to those in any detail, but I am content that the claimant has had regard to their general points and has structured Bundle 2 accordingly. However, it seems that those who instruct counsel for the claimant, Mr Mason, did not inform him until only very recently that Bundle 1 contains the entirety of the documents.”

At [8], he referred to the Respondent’s service of the annotated document schedule late in the afternoon of 31 July 2024, saying as follows:

“I am satisfied that the schedule (although it does broadly reflect the general categories that have been referred to in the Points of Dispute) does go beyond those categories; certainly, it provided significantly more detail than was in the original Points of Dispute.”

At [9]-[10], he observed that the position was “not a happy state of affairs” for the following reasons:

“9.

The court is now presented with…a situation in which the paying party has provided the detail of their arguments on perhaps the most important item (the documentary time) at an extremely late stage, only a few working days before the hearing. This is in circumstances in which the claimant (the receiving party) had already prepared for that hearing and had already prepared a bundle that was based on the general points that were set out in the Points of Dispute (rather than the more specific points set out in the counter-schedule). Those being the circumstances, the claimant says that he would have difficulty in proceeding with the assessment if the entirety of the points taken in the schedule were to stand.

10.

Indeed Mr Mason goes further than that and says that, actually, everybody will have difficulty (the court included) in dealing with the documentary item, this being by reason of the fact that, although a number of categories of objection are set out in the original Points of Dispute, they are not particularised (in the sense that they have not been being linked to any specific items)”.

The Judge observed that there was “no magic” in Ainsworth or in the fact that it was a solicitor and client case. He opined that Ainsworth “essentially boils down to a question of whether or not there is sufficient particularity in the Points of Dispute for the proceedings to proceed fairly (or, to put it another way, whether or not there is sufficient detail given about the objections to allow the receiving party to respond)”: [12]-[13].

He then gave two reasons for declining to strike out Point 23 of the Points of Dispute, as follows:

“15.

Firstly, while I believe that Ainsworth does, in principle, apply in the way that I have just described, the original Points of Dispute would have allowed there to have been a fairly broad-brush assessment in any event; they would have allowed the claimant (the receiving party) to have known the case that was being made against him and to have responded to it. Indeed that must be the case as Bundle 2 has been prepared in such a way as to anticipate those points.

16.

Secondly (and perhaps more importantly), both parties knew that there should have been a further document. The court is profoundly disappointed to hear that there has been no correspondence or liaison on that. As far as I am aware, the defendant took no steps at all to serve what must have been known to have been a crucial document until almost immediately before the hearing. And equally, the claimant - as far as I am aware - took no steps to chase that document, this being despite the fact that in their own Replies, they make comments that make it clear that they realise that there was a further document that was awaited. In those circumstances, I think that both parties are significantly at fault for having failed to comply with the overriding objective and to assist the court by essentially ‘getting their act together’ earlier.”

The Judge then turned to the question of whether to strike out the annotated schedule, holding as follows:

“18.

I have to say that I have not found this an easy point at all. Clearly, the schedule was served unacceptably late, almost to the point that one could say, in other circumstances, that it was an ambush. But I do not think I can say it was an ambush on the facts of this case. This is because it was mentioned right at the very beginning; and both parties are significantly at fault for not having ensured that it was available to them at the time that they were preparing to assist the court on the assessment (such as by preparing bundles). So, I cannot say that it is an ambush.

19.

I also think there is some merit in what Mr Lyons says that the types of points that are made on the schedule are those types of points that would be fairly obvious to any costs practitioner. Indeed, if I had been asked to carry out a provisional assessment, they are the types of points that would occur to me even without reading any Points of Dispute at all.

20.

So, I take that into account, but also take into account the fact that this assessment has been unusual in the sense that it has preceded on almost every item on a line-by-line approach. If that is the way that the parties wish to deal with the matter, then that is fine. That is a detailed assessment, and it is the parties’ right – in particular the paying party’s right - to descend into whatever level of detail they want. That is why it is called a detailed assessment.

21.

So, whilst I fully accept the point that Mr Lyons says about the points in the schedule (namely that they are points which the court would ordinarily expect), and whilst I also accept that there is some truth in the fact that many of the points that are set out in the schedule are those which are anticipated in the original Points of Dispute, the fact is that the way in which the paying party wants to carry out this assessment is on a line-by-line basis and, that being so, I again have to express a degree of concern that this schedule was served so late. That may be so, but ultimately, I cannot categorise this as being an ambush.”

The Judge then turned to the provisions of PD 47, paragraph 13.10, which he set out in full, continuing as follows:

“23.

My reading of that is that that gives me very wide powers. I am entitled to either allow or disallow an amendment and I am entitled to impose conditions, including conditions as to payments of costs. I do not read that as meaning that, if I am going to impose conditions, they must be imposed immediately. I read the Practice Direction as giving the court very wide powers.

24.

Looked at in the round, I have to say that I am critical of both parties. I think that there is inevitably going to have to be an adjournment. I cannot see that it would be fair to require Mr Mason to proceed on the basis that he has to respond to the schedule. I am mildly critical of his instructing solicitors for having failed to draw to his attention the fact that Bundle 1 contained all of the relevant documents (because I am sure that Mr Mason as a highly diligent and competent counsel would have prepared for all eventualities had he been made aware of that fact). But that criticism pales into insignificance in respect of the criticism I have already referred to earlier, which is that the parties should have got their act together at a much, much earlier stage.

25.

Equally, if (contrary to my findings) I had disallowed the amendment (namely, the schedule), I get the strong impression that Mr Mason would still have been in difficulties as he would have had to proceed by reference to what is said in the original Points of Dispute. It was always obvious that the defendant ought to have at least provided a breakdown of which items are being referred to in each of the categories, and I think it would be unfair to require Mr Mason to try to deal with those categories almost in a vacuum without the benefit of the amendment. Therefore, either way, it would be putting Mr Mason in a very difficult position.

26.

So I believe that there has to be an adjournment. I think that, in those circumstances, I have to take a view as to what is going to help the parties to resolve this matter (and what is going to help the court resolve this matter). On balance, I think that it probably is going to be the case that the court is going to be assisted by the schedule.

27.

So, very reluctantly, I am not going to strike out the schedule, but I am going to order that (unless the parties invite me to take a different course, such as by way of a very broad-brush assessment now)…there be an adjournment, but this is going to be on the basis that there will be cost sanctions. Those cost sanctions will not be imposed now, but they will be imposed at the end, and the court, at that stage will expect to know more about the reasons why there was such a delay in getting this schedule before the court.”

He concluded by reminding himself of an observation made by HHJ Gosnell (sitting as a Judge of the High Court) in O’Sullivan v Holmes and Hills LLP [2023] EWHC 508 (KB) at [52]-[53], to the effect that it was not enough that a judge was able to carry out an assessment: in the interests of the receiving party the judge had to ensure that there was a fair process even when the court was trying to adopt a proportionality approach. He indicated that that was one of the reasons why he had found that there had to be an adjournment: it may well have been that he could have “come up with a figure”, and that that figure would have been close to what he was likely to allow after having heard point-by-point submissions, but that would not be an appropriate or fair approach: [28]-[29].

The Judge concluded by saying that he was adjourning the detailed assessment and reserving the matter to himself, reiterating that “there will be consequences in terms of costs in respect of this”: [30].