The High Court has rejected an appeal against a costs judge’s decision to refuse a claimant permission to serve supplementary points of dispute.
Master James in the Senior Courts Costs Office was justified in penalising the claimant for only handing over the points to the defendant 90 minutes before the detailed assessment, Mr Justice Chamberlain ruled.
In Edinburgh v Fieldfisher LLP  EWHC 862 (QB), the dispute between Jason Edinburgh and City firm Fieldfisher arose after he terminated his retainer over a possible claim against a financial adviser. Mr Edinburgh applied for assessment of the four invoices Fieldfisher rendered, worth £87,247, although Master James ordered that there would only be an assessment of three of them.
His new solicitors served points of dispute containing two general points only: alleged defective service of the bills and a simple reservation of Mr Edinburgh’s right to dispute each and every item claimed in the bill and to serve supplemental points of dispute if service was determined to be effective.
Master James found service to be valid and that Mr Edinburgh’s points of dispute should stand as those in the case. A detailed assessment was listed for 2 December, two days before which an application was made on Mr Edinburgh’s behalf for permission to serve supplemental points of dispute. The points themselves were provided about 90 minutes before the start of the hearing.
The master decided not to allow any amendments to the points of dispute, finding the facts that Mr Edinburgh’s brother had died in the summer and the substantive claim had settled in recent months did not explain why the application to serve the supplemental points had been made so late.
The only point on the other side was that Fieldfisher’s bill of costs for the assessment proceedings (£49,000) was “an extraordinarily high sum and a sum that is likely to come down significantly”.
Given that the assessment of own client costs takes place on the indemnity basis, disallowing the supplemental points of dispute was, as the Master accepted, bound to mean that the assessment allowed almost all of Fieldfisher’s costs.
This proved to be the case and costs were assessed at £71,000. Permission to appeal was rejected on the papers and the claimant renewed his application orally.
Chamberlain J accepted that the default position under paragraph 6.15 of CPR 46PD was that parties may vary points of dispute if they so wish, 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.”
The judge found no arguable error in the master’s approach to the exercise of the discretion. “The ‘points of dispute’ filed in August 2019 were not really points of dispute at all. The two general points they contained gave no indication of the grounds on which the amounts in the invoices were disputed…
“The master was properly cognisant of the effect on Mr Edinburgh of the untimely death of his brother, but that had occurred in June 2019. Without more, it did not explain the delay until 2 December 2019 in submitting the supplementary points of dispute.
“Likewise, the master properly placed little weight on Mr Edinburgh’s claim to preoccupation with the Greystone proceedings. This was because the submission made to her was vague as to when those proceedings had settled.”
In any case, Mr Edinburgh had more than three weeks in which to file supplementary points of dispute after Fieldfisher had applied for detailed assessment. Had the master agreed to consider them, she would have had to adjourn the hearing, which would have given rise to yet more cost.
“The master was therefore fully entitled to conclude that the delay gave rise to ‘grave concern’. The contrary is not arguable.”
Chamberlain J accepted it was possible that, had the supplementary points of dispute not been disallowed, Mr Edinburgh might have secured a substantial reduction in the bill. But the master was justified in finding that this was not enough to outweigh Mr Edinburgh’s failure to indicate any substantive points of dispute until 90 minutes before the assessment hearing.
“For these reasons, an appeal against the master’s case management decision disallowing Mr Edinburgh’s points of dispute would have no real prospect of success. Permission to appeal is therefore refused.”
Thomas Blackburn, Costs Draftsman (instructed by Croft Solicitors) for the appellant. Ben Nethercott, Costs Lawyer (instructed by Fieldfisher) for the respondent.