Points of dispute must “determine precisely what is in dispute and why”

The Court of Appeal has upheld a decision by the Senior Costs Judge to dismiss overly generalised points of dispute (PoDs), laying out clear guidance about the need for them to help the parties and court “determine precisely what is in dispute and why”.

Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 involved the detailed assessment of the London law firm’s costs in acting for the claimant in a family law matter after their relationship broke down.

At issue was a PoD over six entries for time spent on documents over a two-week period, which were supported by 32 timed entries of activities undertaken (called ‘Point of Dispute 10’ in the ruling).

The claimant disputed all the entries and listed seven “main issues”, such as significant duplication between fee-earners, wholly excessive time expended by fee-earners reviewing documentation provided by the claimant, too much time claimed generally in relation to preparation and so on.

Stewarts Law complained that it could not provide “any meaningful reply” to these general points – it needed itemised points of dispute.

Chief Master Andrew Gordon-Saker agreed, asking how the defendant could prepare for a detailed assessment “when they don’t know what is being alleged against them”. The PoD did not raise a proper challenge to the items. “One can well understand why Mr Poole [for the claimant] is seeking to adopt the approach that he is of encouraging the court to take a broad brush, but the difficulty with that approach is that we are not going to be looking at every item, we will only be looking at particular items and presently, apart from Mr Poole, none of us knows which items those are going to be.

“It seems to me that that does put the defendant in a difficult position. It also puts the court in a difficult position. I read the papers in the light of the points of dispute as they are pleaded and I was not able to identify which particular items are challenged or why. In the circumstances, I think the only fair course is to dismiss that point of dispute 10 on the basis that it has not been properly pleaded.”

This decision was upheld on appeal a year ago by His Honour Judge Klein sitting as a High Court judge.

Giving the ruling of the Court of Appeal, Lady Justice Asplin approved the notes in the White Book, which provide that the procedure in part 47 applies to a solicitor and own client assessment subject to rule 46.10 and any contrary order of the court.

Paragraph 8.2 of practice direction 47 “makes it absolutely clear that points of dispute should be short and to the point and, therefore, focused”, she said.

“Furthermore, sub-paragraphs (a) and (b) leave no doubt about the way in which the draftsman should proceed. General points and matters of principle which require consideration before individual items in the bill or bills are addressed, should be identified, and then specific points should be made ‘stating concisely the nature and grounds of dispute’.” This was, the judge added, “entirely consistent” with the Jackson report.

PoDs must enable the parties and the court “to determine precisely what is in dispute and why”. They must not only identify general points and matters of principle but also specific points stating concisely the “nature and grounds of the dispute”.

Asplin LJ said: “In the case of a solicitor and own client assessment, it seems to me, therefore, that in order to specify the nature and grounds of the dispute it is necessary to formulate specific points by reference to the presumptions contained CPR 46.9(3) which would otherwise apply, to specify the specific items in the bill to which they relate and to make clear in each case why the item is disputed.

“This need not be a lengthy process. Having explained the nature and grounds of dispute succinctly, the draftsman should insert the numbers of the items disputed on that ground in the relevant box. The principle is very simple. In order to deal with matters of this kind fairly, justly and proportionately, it is necessary that both the recipient and the court can tell why an item is disputed. The recipient must be placed in a position in which it can seek to justify the items which are in dispute.”

PoDs, even in solicitor and own client assessments, should adopt the format of Precedent G “to the extent practicable and that the numbers attributed to the individual items to which a complaint relates should be set out in the appropriate box”, the judge continued.

The PoD at issue fell short as a result. It was general in nature, stated that all items were disputed, and provided a general overview rather than an exhaustive list of issues. “It did not contain cross-references to the numbers of the items disputed on particular grounds. In fact, it was accepted that it did not state why any item in the bill was disputed. In my judgment, therefore, it did not comply with 47PD.8 para 8.2, nor, for that matter, did it take the form of Precedent G.”

It followed that Master Gordon-Saker was not wrong to dismiss the assessment in relation to the PoD. The court rejected the argument that section 70 provided an “absolute” right to be heard.

The claimant’s counsel had said he intended to pick out items as he went along, without having warned Stewarts Law which ones, or the specific reason for choosing them, and then to ask the Chief Master to adopt a broad-brush reduction of the costs claimed.

Asplin LJ said: “In those circumstances, and given the fact that Mr Ainsworth had had five months warning that the point would be taken and was entitled to amend the points of dispute, it seems to me that although no express reference was made at the hearing to CPR r3.4 or 47PD.8 (of which the Chief Master would have been well aware), the Chief Master was entitled to form the value judgment he did and to dismiss the assessment in relation to Points of Dispute 10.

“It seems to me that that decision falls within the wide ambit of the court’s discretion under CPR r3.4(2)(b) and or (c). The Chief Master was entitled to decide that it was not possible to conduct a fair hearing on the basis of Points of Dispute 10 as pleaded, the matter could not be conducted fairly ‘on the hoof’ and was likely to take too long.

“Despite his very considerable experience in these matters the Chief Master himself noted that, having read the papers in the light of the points of dispute as they were pleaded, he was unable to identify which particular items were challenged or why and Mr Poole accepted that that was the case.

“It follows that I consider that the judge was entitled to take the course he did which was well within the ambit of the proper exercise of his discretion and, for all the reasons to which I have referred, this appeal should be dismissed.”

Joshua Munro (instructed by Clarke Barnes) for the appellant and Robin Dunne (instructed by Stewarts Law) for the respondent.

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Costs News
Published date
20 Feb 2020

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