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Non-Compliant Points of Dispute Struck Out.

In Ward v Rai [2025] EWHC 1681 (KB), Mrs Justice Hill DBE heard an appeal from the receiving party that the deputy costs judge at first instance had been wrong not to strike out the point of dispute that sought to deal with 134.1 hours of documents time on a broadbrush approach by advancing 8 general points to purportedly accompany an annotated documents schedule resulting in an offer of 68.2 hours of time. However, the annotated documents schedule identifying which individual entries were in dispute was only served two working days before the detailed assessment hearing with offers totalling 58.5 hours and, on an alternative case, 58.8 hours. Understandably, the receiving party invited the deputy costs judge to strike out the points of dispute as non-compliant with Ainsworth v Stewarts LLP [2020] EWCA Civ 178 and to refuse permission for the paying party to rely on the annotated documents schedule.  In declining to strike out the point of dispute, the deputy costs judge opined:

• the receiving party seemingly had regard to the 8 general points raised by virtue of the way in which the hearing bundles has been prepared
• there was no “magic” in Ainsworth which essentially boils down to a question of whether or not there was sufficient detail given about the objections to allow the receiving party to respond
• the original point of dispute would have allowed there to have been a fairly broadbrush assessment and for the receiving party to have known the case that was being made against him and to have responded
• both parties knew there should have been a further document. Although the paying party took no steps to serve the annotated documents schedule until almost immediately before the hearing, the claimant equally had taken no steps to chase it thus both parties were significantly at fault for having failed to comply with the overriding objective and to assist the court
• the points made on the annotated schedule are those types of points that would be fairly obvious to any costs practitioner.

The deputy costs judge went on to exercise the court’s power under PD47 para 13.10 to allow the paying party to rely on the annotated schedule, which led to the detailed assessment hearing being adjourned albeit with costs consequences that would follow at conclusion.

Taking a contrary view to the judge below, Mrs Justice Hill DBE on appeal ruled the points of dispute were not compliant with 47PD para 8.2(b) or Ainsworth. Only general assertions were made without indicating which items/entries they related to and failed to make clear the reasons why individual items were in dispute. The point of dispute was, in her view, directly comparable to the contentious points in Ainsworth and Christodoulides v CP Christou LLP [2025] EWHC 214 (SCCO) and even less specific than those in O’Sullivan v Homes and Hills LLP [2023] EWHC 508 (KC) and St Francis Group 1 Ltd & others v Kelly & anor [2025] EWHC 125 (SCCO). Furthermore, in making clear that a further document schedule would be provided in support – which subsequently set out specific objections to individual items for different reasons and arriving at lower total figures – the paying party were tactically accepting that in the absence of the annotated schedule the points of dispute were not compliant. As per O’Sullivan, the question of whether points of dispute are compliant was a binary one rather than a matter of discretion. However, whether to proceed to strike out the points of dispute was an evaluative, discretionary question inextricably linked with the similarly evaluative discretionary question of whether to permit the variation which the paying party sought to effect through the annotated document schedule.

That being so, numerous grounds of appeal were dismissed by the appellate judge based on her own findings that:

• the deputy costs judge appeared to have accepted the point of dispute was not compliant
• did not misdirect himself by finding that a “fairly broad-brush assessment” could have taken place based on the point of dispute alone
• could not be criticised for finding the receiving party had a duty to chase the paying party for the annotated document schedule thus there had been no “ambush”
• had correctly identified his powers under PD13.10(2) were wide.

That was not the end of the matter though. Mrs Justice Hill DBE was moved to consider the overarching argument that the approach below was wrong and involved a failure to give proper effect to 47PD paragraphs 8.2(b) and 13.10(2). In concluding that the only reason for the hearing having been adjourned and running into a third day was due to the decision allowing the paying party to rely on the annotated document schedule (otherwise based purely on the point of dispute as pleaded the assessment would have been concluded in the listed 2 days), she went on to find the deputy costs judge had erred in principle and did not balance the various factors fairly in the scales. In particular:

• any issues over the hearing bundle were not determinative on the second day of the hearing absent the paying party being granted permission to rely on the annotated document schedule
• the paying party had been on notice for 7 months that the point of dispute was not compliant but had only taken steps to remedy the position 2 working days before the hearing – conduct that was more egregious than that on display in Ainsworth where there had been a period of 5 months without remedy
• the reason given by the paying party for the delay in serving the schedule – namely they hoped the parties would achieve settlement and avoid the hearing – was entirely circular with settlement more likely to be achieved if the receiving party understood the case against them
• the original listing of 2 days would have been adequate but for the issues over the annotated document schedule
• it was difficult to see how dealing with the case “justly and at proportionate cost”, “expeditiously”, “saving expense” and “enforcing compliance with rules, practice directions and orders” as per the overriding objective was met by allowing the hearing to spill into a subsequent third day
• detailed assessment was intended to be a streamlined process to assist the parties in negotiating an agreed sum in settlement of a claim for costs underpinned by mandatory requirements such as those in 47PD para 8.2(b)
• the unfairness to the paying party in having the point of dispute struck out and annotated schedule disallowed was entirely of their own making.

In view of the above, the refusal to strike out the point of dispute and allow the paying party to rely on the schedule was wrong. The appeal was allowed by virtue of the lower court failing to give sufficient weight to the requirements of PD8.2(b) and Ainsworth – and ensuring the power at PD13.10(2) was exercised in accordance with the overriding objective.

This latest decision in a growing number of cases arising out of Ainsworth v Stewarts LLP [2020] EWCA Civ 178 demonstrates how receiving parties can achieve better financial outcomes by holding paying parties to the standard expected of them under the Civil Procedure Rules. Where points of dispute fail to comply with the mandatory requirements, it is possible to have the offending point(s) of dispute struck out thus removing the paying party’s ability to challenge the costs claimed leading to improved recovery.

How can PIC help?

PIC have considerable experience in the costs recovery process & attending detailed assessment hearings which helps maximise profitability and reduce cycle times. Please get in touch to see how you can benefit from our services.

Ben Petrecz, Costs Lawyer Advocate and Senior Costs Consultant

31/07/2025