Page 12 - PIC Magazine Issue 25 - Autumn-Winter 2025

The Consequences
of Non-compliant
Points of Dispute
Ben Petrecz - Costs Lawyer Advocate & Senior Costs at PIC
osts specialists are a diverse collection of
professionals who are continually required
to improvise, adapt and overcome. Far too
frequently in the world of costs, things are
plodding along in the usual manner
when, suddenly, a rule change or reported decision
compels you to pause and carry out a root and
branches review of existing practice & procedure.
This has been happening over the last few years in
respect of preparation of points of dispute and the
correct interpretation of CPR 47 Practice Direction 8.2.
For more than a decade, paying parties served points
of dispute to traditional 3 and 6 column bills without
any major issue as to form & content. Providing the
essence of the objection was raised, the fi ner details
& substance was often dealt with on a broadbrush
basis, either with the consent of the parties’ advocates
or via the court exercising its inherent jurisdiction or
general powers under CPR 1.1 to deal with cases justly
but effi ciently. There was always a redline preventing
a paying party from ambushing a receiving party with
issues not foreshadowed in points of dispute, but
it was rare for focus to be on the adequacy of the
points of dispute rather than the costs being assessed.
However, following a series of decisions stemming
from Ainsworth v Stewarts LLP [2020] EWCA Civ 178,
costs specialists are now wrestling with the competing
concepts of: (i) trying to avoid points of dispute being
verbose/prolix; and (ii) ensuring individual items in
the bill are identifi ed, addressed and disputed on
specifi c grounds so as to allow the receiving party
to understand the case it has to meet and the court
to determine the issue justly, expeditiously and at
proportionate cost.
In Ainsworth, the paying party served points of dispute
stating: (i) all documents entries amounting to 46.8
hours were disputed; (ii) with 7 general/generic points
made to provide a “general indication” of “the main
issues with the document time”; (iii) advising “the
above stated list was not exhaustive of the issues but
provided a general overview as to the reason why the
time claimed was unusual in nature and/or amount”;
and (iv) reserving their position generally. The receiving
party complained no meaningful reply could be
provided and, in the absence of itemised points being
served, the court would be asked to dismiss the point.
This was indeed what the (then) Senior Costs Judge
did on assessment. Lady Justice Asplin upholding the
decision below gave invaluable guidance on form and
content for points of dispute, remarking at [38]:
Common sense dictates that the points of dispute
must be drafted in a way which enables the parties
and the court to determine precisely what is in
dispute and why. Th at is the very purposes of such
a document. It is necessary in order to enable the
receiving party, the solicitor in this case, to be able to
reply to the complaints. It is also necessary in order
to enable the court to deal with the issues raised in a
manner which is fair, just and proportionate.
This was followed by O’Sullivan v Homes and Hills
LLP [2023] EWHC 508 (KB) wherein the point of
dispute objected to all documents entries on the
basis they were either unnecessarily incurred and/or
unreasonable in amount. Counteroff ers were made
on a global basis next to each fee earners’ description.
Not good enough said His Honour Judge Gosnell on
appeal sitting as a Judge of the High Court. The word
“items” in 47PD paragraph 8.2 was interchangeable
with “entries” and extended to the documents
schedule. The point of dispute was accordingly struck
out for lack of particularity.
In Wazen v Khan [2024] EWHC 1083 (SCCO), after
fi nding that Ainsworth applies equally to solicitor-
client & inter partes assessments, Deputy Costs Judge
Roy KC struck out the point of dispute that sought to
challenge costs in the Disclosure and ADR phases by
simply outlining the total number of hours and base
profi t costs claimed, then off ering a lower number
of hours at alternative rates. He opined that points
of dispute had to fi rstly identify what was in dispute
by reference to item numbers and/or fi ltering in an
electronic bill; and secondly, must identify the nature
of the challenge which logically entails identifying
what is being conceded or off ered.
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