Judge sets aside provisional assessment because of missing documents from bundle

Paying party’s failure to seek oral hearing not “fatal” as case management powers applied

A costs judge has set aside a provisional assessment (PA) order because the bundle prepared by the receiving party omitted key documents.

Deputy Costs Judge Bedford held that she had the power to do accede to the application even though the paying party had not requested an oral hearing of the PA under CPR 47.15.

She noted: “I am informed by counsel that there is no binding authority, or indeed any authority, on this point.”

MH v CH [2026] EWHC 238 (SCCO) concerned Court of Protection proceedings in which MH was ordered to pay 50% of CH’s costs. The bill of costs was £19,234.CH lodged the N258 bundle with the court but it omitted MH’s annotated bill of costs and note in relation to the points of dispute.

Judge Bedford conducted the PA and said she now understood that the difficulties she had in understanding the vast majority of the objections were because of the missing documents.

MH applied to set aside the PA order but counsel for CH argued that it was binding, submitting that the court could not use its general case management powers in CPR 3.1(7) because of the specific rule governing PAs in CPR 47.15(7) requiring MH to request an oral hearing.

Judge Bedford rejected this, saying it was “instructive” that the rules committee could have excluded the general case management powers from the PA procedure – but did not.

She found the requirement that a party wishing to challenge “any aspect” of the PA had to request an oral hearing was limited to “the four corners of the disputes capable of being resolved within the assessment itself”.

There were circumstances, “narrow and confined though they might be”, where a party may wish to challenge matters which fell outside the assessment boundary – “one such example being whether the provisional assessment itself has been conducted correctly and in accordance with the procedural code”.

The judge went on: “That is a very different question to whether disputed items within the provisional assessment were resolved reasonably and proportionately having regard to costs jurisprudence. The former is a question of procedural jurisdiction: the latter is an assessment question of law, fact and degree.”

Further, on “a practical level”, such an exclusion would not be of general benefit to parties or further the overriding objective. “Application where the court has undertaken an erroneous determination is one clear example of where the court’s case management powers are required to meet the justice of the situation.”

CH’s analysis was also “destructive of the aims” of the PA regime, Judge Bedford continued. “Where a receiving party fails to file the paying party’s full points of dispute they are depriving them of their right to access that paper based assessment. Pointing to the oral hearing does not rectify that deprivation.”

The “more cohesive analysis” was that the two provisions worked “in tandem”: CPR 47.15(7) was specific to items challenged within a PA, while CPR 3.1(7) was available in respect of challenges external to items in the assessment.

She added: “If I am wrong on the above, I find on the facts of this case CPR 47.15(7) is not engaged in any event. That is because absent filing a copy of the paying party’s complete objections, the provisional assessment was not correctly requested or undertaken.”

This all meant that, as MH made a prompt application to challenge the jurisdiction of the PA, within seven days of the order, the court had jurisdiction to set it aside “in appropriate circumstances”. The failure to request an oral hearing was not “fatal”.

The question then was whether the threshold test in CPR 3.1(7) had been met. “In my judgment, the facts of this case comfortably meet the higher test of exceptionality,” Judge Bedford held.

CH’s failure to comply with mandatory rules, leading to the court into proceeding “on a misstated position and in doing so wasting time undertaking an assessment on an incorrect basis”, was exceptional.

It could not be “right, fair or just to allow a defaulting party to benefit from their default”. The fair and proportionate remedy was to put the parties and the court back into the position “they all ought to have been in had the provisional assessment been conducted according to the full cohort of documents that ought to have been placed before the court”.

If she were wrong on all of this, the judge found “exceptional circumstances within the understanding of CPR 47.15(7) for the same reasons as expressed above and the PA order would be set aside under those circumstances in any event”.

She concluded that, given the “atypical nature” of the situation, the matter should proceed as a detailed assessment.

Christopher Moss (instructed by Irwin Mitchell) for the first respondent. MH appeared in person.