Cost News

Kathryn Regan

Following the decision in Ainsworth –v- Stewarts Law LLP, there has, perhaps unsurprisingly, been a shift in the way points of dispute are prepared, particularly in respect of Solicitors Act Assessments. The recent matter of Edinburgh –v- Fieldfisher LLP [2020] EWHC 862 (QB) highlights that parties should be cautious when preparing limited points of dispute on a technicality, as you may not subsequently be allowed to rely on an amended version.

In Edinburgh, the Claimant had served points of dispute containing two general points only. The first related to an allegation of defective service of the breakdown of costs and the second was simply a reservation of the Claimant’s right to dispute each and every item claimed in the bill and to serve supplemental points of dispute if service was determined to be effective.

The Defendant applied for a confirmatory order and the matter came before Master James, who decided that service of the Defendant’s bill of costs was valid and the Claimant’s points of dispute should stand as the points of dispute in the case.

The matter progressed and a detailed assessment was listed. Two clear days before the assessment, the Claimant made an application for permission to serve supplemental points of dispute. The points of dispute were provided approximately 90 minutes before the start of the hearing. As one might have expected, the Claimant’s application was defended by the Defendant. Following hearing the parties, Master James decided not to allow any amendments to the points of dispute and, as a result, the Defendant’s costs were assessed as claimed.

The Claimant sought permission to appeal on the basis that Master James had erred in the exercise of her discretion, as the Claimant had a real prospect of success and the Master had failed to properly take into account all of the factors in the overriding objective. The Claimant also contended that the Master had taken into account irrelevant matters.

Mr. Justice Chamberlain noted that the default position was that parties may vary points of dispute without permission of the Court, subject to an important discretion to disallow the variation or to allow it upon conditions. However, the practice direction does not prescribe how the discretion to disallow supplemental points of dispute should be exercised. He accepted the overriding objective had to be borne in mind.

Mr. Justice Chamberlain stated he was “unable to find any arguable error in the approach of the Master to the exercise of the discretion conferred on her”. He found the Master placed appropriate weight to the submissions made in respect of the Claimant’s personal circumstances (including the death of his brother and his preoccupation with another set of proceedings).

Furthermore, he found that the Claimant had ample opportunity to raise this issue at an earlier stage, given the Defendant had put the Claimant on notice of their application for assessment. Had the Claimant served their points of dispute at an earlier stage, the matter could have been listed to include hearing of the Claimant’s application and the further points being made. Only an hour had been listed for the assessment given the scant points raised. The assessment would have required to have been adjourned even if the Master had permitted the amendment at the hearing, which would have given rise to further costs being incurred.

“It was not necessary to refer to each and every one of the factors set out in the overriding objective in every case. The extent to which it is necessary to refer to any or all of these factors will depend on the facts of the case. What matters is whether the decision maker has referred to the key factors relevant in the particular case. In this case, the master properly concentrated on the question whether it would be fair to consider substantive objections to the amounts claimed in invoices when no such objections had been received until 90 minutes before the hearing.”

Mr. Justice Chamberlain concluded that the factors that may be relevant to the exercise of the discretion to disallow supplementary points of dispute depended on the circumstances of each case and permission to appeal was refused in this matter. In light of this decision, parties should be very wary of leaving amendments to points of dispute to the last minute. If possible, full points of dispute should be prepared within the original time limit.