The appeal centred on whether Deputy Costs Judge Friston erred in his handling of two key procedural matters:
- His refusal to strike out Point 23 of the Respondent’s Points of Dispute, despite its non-compliance with CPR PD 47, para 8.2(b) and the principles set out in Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178.
- His decision to permit the Respondent to rely on an annotated document schedule served just two working days before the detailed assessment hearing, despite its extreme lateness.
Background
The Appellant (Claimant), having succeeded in personal injury proceedings, sought recovery of costs. The Respondent (Defendant) disputed Item 39 of the Bill, which claimed 134.1 hours for document work. This challenge was articulated in Point 23 of the Points of Dispute, which contained generalised criticisms but failed to link them to specific entries in the Bill, contrary to PD 47, para 8.2(b).
Shortly before the hearing (on 31 July 2024), the Respondent served an annotated schedule detailing objections to individual entries. However, this was provided at the eleventh hour, leaving the Appellant insufficient time to respond. Despite this, the Judge declined to strike out Point 23, allowed the late schedule, and adjourned the assessment.
Appeal Findings
On appeal, the High Court identified several errors in the original decision:
1. Failure to Enforce Compliance with PD 47, para 8.2(b)
Point 23 was vague and generic, failing to specify which entries were disputed or why. Authorities such as Ainsworth, O’Sullivan, and St Francis confirm that non-compliant Points of Dispute should be struck out. The Judge erred in not doing so, undermining the requirement for clear, specific objections in detailed assessment.
2. Misplaced Reliance on "Broad-Brush Assessment"
The Judge suggested Point 23 allowed for a broad assessment, but this misdirected the purpose of detailed assessment, which requires line-by-line scrutiny. The High Court clarified that while the Judge ultimately acknowledged this need, his initial reasoning was flawed.
3. Incorrect Criticism of Appellant for Not "Chasing" the Schedule
The Judge wrongly held that the Appellant should have pursued the Respondent for the annotated schedule. The High Court reaffirmed the principle from Barton v Wright Hassall [2018] UKSC 12 that there is no duty to assist an opponent’s procedural failures.
4. Late Schedule Constituted an "Ambush"
The Judge found that the late service did not amount to an ambush because the Appellant "knew it was coming." The High Court disagreed, ruling that the extreme lateness and lack of prior particularisation did constitute an ambush, prejudicing the Appellant’s ability to respond fairly.
5. Misapplication of PD 47, para 13.10 (Discretion to Permit Variations)
While the Judge correctly noted his wide discretion under Edinburgh v Fieldfisher [2020] EWHC 862, he failed to properly consider the overriding objective. Allowing the late schedule caused unnecessary delay and cost, contrary to the principles of efficiency and proportionality.
Decision
The appeal was allowed. The High Court held that the Judge erred in principle by:
- Failing to strike out Point 23 for non-compliance with PD 47, para 8.2(b).
- Permitting the late schedule, which disrupted the streamlined nature of detailed assessment.
- Incorrectly attributing fault to the Appellant for not chasing the Respondent’s non-compliance.
The result was additional cost and delay, contrary to the overriding objective.
The Upshot
This judgment reinforces the strict compliance required for Points of Dispute and the limits on late variations. Paying parties must particularise objections early, or risk strike-out. The decision aligns with Ainsworth and Celtic Bioenergy, emphasising proportionality and fairness in costs litigation.
