Ward v Rai [2025] EWHC 1681 (KB)

Facts of the case

The matter concerned an appeal brought by the Claimant (receiving party) following the detailed assessment of his costs of the substantive PI claim.

The bill of costs included 134.1 hours of document time comprising of 418 entries. The Points of Dispute sought to challenge that time as a whole, making an offer of 68.2 hours and stating that the Defendant would rely on an annotated document schedule. The Claimant raised the case of Ainsworth and stated that they were unable to provide a meaningful response. A counter proposal of 130 hours was made.

The Defendant’s annotated schedule was provided late in the day on 31 July 2024 ahead of the assessment hearing which had been listed on 5-6 August 2024. The items in dispute were marked as one of eight categories : "Duplication; Supervision; Non-progressive; Excessive time claimed; Non-contemporaneous file notes; Case management discussion; Incoming correspondence and routine response out; Lower grade offered, not grade A work".

At the assessment hearing, the judge was invited to strike out the dispute on the document time as non-compliant with 47PD8.2(b) and the judgment in Ainsworth. The judge declined to do so and allowed the Defendant to rely upon the annotated schedule, adjourning the assessment to a third day. On that third day, the documents were assessed (largely on a broad brush basis).

The Claimant sought to appeal the judgment on five grounds and was ultimately successful on two of those grounds. It was found that the judge’s decision had failed to give sufficient weight to the requirements of 47PD8.2(b) and Ainsworth and to ensure that the power to disallow amendment under 47PD13.10(2) was exercised in accordance with the overriding objective.

The rules

The judgment provides a useful reminder of the process set out in CPR 47 and PD 47. In particular, 47PD8.2 which provides that :

Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to this Practice Direction, so far as practicable. They must:

(a) identify any general points or matters of principle which require decision before the individual items in the bill are addressed; and

(b) identify specific points, stating concisely the nature and grounds of dispute.

Once a point has been made it should not be repeated but the item numbers where the point arises should be inserted in the left hand box as shown in Precedent G.

The judgment also considers CPR47.14(6) which provides that the submissions at assessment are limited to those objections set out in the Points of Dispute (without permission of the Court).

The parties may vary their Points of Dispute by filing and serving an amended or supplementary document under 47PD13.10. In this instance, an annotated schedule which was served late in the day and resulted in an additional hearing day being required.

The judgment also considers the issues in Ainsworth in detail. The key takeaways being that Points of Dispute must be in form Precedent G and “must be drafted in a way which enables the parties and the court to determine precisely what is in dispute and why”. Receiving parties must be in a position to understand the objections in order to adequately respond. Points of Dispute which do not comply are at risk of being struck out.

Whilst Ainsworth concerned a Solicitor and own client matter, rather than costs between the parties, the SCCO has confirmed in two subsequent judgments (Wazen v Khan and St Francis Group 1 Ltd & ors v Kelly & Anor) that the Ainsworth principles apply equally between the parties.

Practicalities

The position remains as per Ainsworth in that :

• Points of Dispute must be in form Precedent G
• Points of Dispute must show precisely what is in dispute and why - The Claimant must be able to understand which items are disputed in order to respond.
• The disputes should be clear from the outset and not an ‘ambush’ at assessment.
• It is not for the Court to go through each item to ensure there is no objection to it. The Points should rase clear and pertinent points upon which the Court can adjudicate.

A paying party may be able to remedy non-compliant Points of Dispute with an early  supplemental document but the Court will seek to further the overriding objective when exercising its power under 47PD13.10(2).

If you have any questions regarding this summary please contact Helen Spalding here.

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