Be Specific on Grounds of Dispute!
The High Court in O’Sullivan v Holmes and Hills LLP  EWHC 508 (KB) has struck out the points of dispute during Solicitor and own Client assessment proceedings, on the basis they did not comply with PD 47.8.2 and the decision in Ainsworth v Stewarts Law LLP  EWCA Civ 178.
Mr O’Sullivan was successful in a personal injury claim and was awarded £80,000 in damages. Holmes and Hills LLP accepted £45,000 in costs, then sought to recover a further £17,000 shortfall from Mr O’Sullivan pursuant to the terms of their retainer.
Another firm of Solicitors were instructed by Mr O’Sullivan to challenge the deduction under section 70 of the Solicitor’s Act 1974. The Points of Dispute took a broad-brush approach to the ‘items’ in the whole of the document sections of the bill on the grounds that, “the time claimed in respect of documents is disputed as being either unnecessarily incurred and/ or unreasonable in amount”.
A provisional assessment had taken place initially, followed by an oral hearing. In its Replies, the receiving party objected two points of dispute, stating the Court had been wrong to conclude they were compliant with CPR PD 47 para 8.2 and which, they contended, should have been dismissed.
District Judge Batchelor sitting as a Regional Costs Judge, determined that the Points of Dispute had adequately set out the grounds of dispute and were thus compliant. She declined to dismiss the points, rejecting the contention of the receiving party that it was a requirement of both CPR PD47, para 8.2 and the binding decision in Ainsworth that the paying party set out their specific objections to each disputed item in the bill:-
“To adopt that would mean that each and every timed entry would have to be specifically addressed, and that is going back to what I will describe as the “bad old days” that Sir Rupert Jackson was so keen we move away from. I do not accept that in Ainsworth the Court of Appeal would have said “this need not be a lengthy process” if they were seriously suggesting that each and every timed entry under the documents item in a bill would need to be objected to.”
The ‘real issue’ on appeal was how the District Judge should have interpreted Ainsworth, said HHJ Gosnell.
HHJ Gosnell allowed the appeal accepting the argument in Ainsworth using the terms ‘items’ and ‘entries’ interchangeably and that both the CPR and Ainsworth expect more than just correctly recording the item number in the points of dispute.
The receiving party should be able to identify the units of work which are in dispute and the reason why in order to challenge with an explanation or evidence.
It was concluded that the District Judge should have dismissed the points of dispute because they failed to adequately set out the nature and grounds of the dispute. “There was ample opportunity for the respondent to seek to amend the points of dispute to raise the appropriate amount of detail to satisfy the test in CPR 47 PD par 8.2 but he chose not to so thus presenting the rather stark choice which the district judge had to make.”
How can PIC help?
PIC are costs specialists in preparing Replies on behalf of the receiving party ensuring opportunities are given to support the claim for costs. Should you receive Points of Dispute which are not concise and state the nature and grounds of dispute, please do get in touch.
Sarah Hope, Costs Lawyer