Page 13 - PIC Magazine Issue 25 - Autumn-Winter 2025

Deputy Costs Judge Roy KC also struck out
points of dispute to the extent they failed
to comply with Ainsworth and 47PD in the
subsequent case of Christodoulides v CP
Christou LLP [2025] EWHC 214 (SCCO),
declaring the points prolix, discursive,
unfocused and virtually incomprehensible.
Costs Judge Leonard in St Francis Group
1 Ltd & oths v Kelly & anor [2025] EWHC
125 (SCCO) followed suit where a “cut and
paste” exercise was adopted by the paying
party - rather than a considered approach
- creating obscurity as to which of the
preliminary points might apply to which
timed entry.
In Ward v Rai [2025] EWHC 1681 (KB), Mrs
Justice Hill DBE overturned the court below
which had declined to strike out points of
dispute for non-compliance and permitted
reliance on an annotated document
schedule served only 2 days before the
hearing. She took the view the point of
dispute was non-compliant and the course
of action taken had unnecessarily caused
an adjournment resulting in the assessment
spilling into a third day, which was hardly
in keeping with the overriding objective
- namely saving expense and dealing
with the case expeditiously and justly at
proportionate cost.
So where does this leave costs
professionals and advocates dealing
with issues concerning the adequacy
or otherwise of points of dispute?
It would be a brave individual
who attempts to proffer a
comprehensive one-size-
fits-all guide to preparing
Points of Dispute; that is not
the purpose of this article.
But whether acting for a
paying or receiving party,
it is essential to understand
some of the more important
threads that run through all
these recent decisions.
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It is for the paying party to raise clear and pertinent points upon
which the court can adjudicate in a fair, just and proportionate
way. They must be coherent, comprehensible and the
reductions sought quantifiable.
Paying parties should be selective in the number of challenges
raised or risk criticism for adopting a disproportionate course
of action.
The court will not be lenient to what is perceived as “lazy”
drafting, nor will the court be impressed by unnecessarily
verbose or prolix disputes taking the form of a scatter-gun
or copy & paste approach.
The term “item” in 47PD para 8.2 is interchangeable with
“entry” and can relate to an individual time unit, a collection of
individual units of work, or a specific tranche or phase of costs.
Points of Dispute must firstly identify what is in dispute by
reference to item numbers/entries and/or filtering in an
electronic bill. Secondly, they must identify the nature of the
challenge which logically entails identifying what is being
conceded or offered.
The receiving party must be able to identify which specific
items/entries are disputed and the reason for the challenge
so they can understand the case they have to meet and
seek to justify such. This extends to ensuring the appropriate
documentation can be placed before the court allowing it to
adjudicate upon the complaint in a manner that is fair, just and
proportionate.
The level of particularity required in points of dispute is a case-
specific question of fact and degree. But the court will not
adopt an overly inquisitorial role where particularity is lacking.
In a solicitor own client assessment, further consideration
should be given to formulating specific points by reference
to the presumptions contained in CPR 46.9(3) which would
otherwise apply.
The question of whether points of dispute are compliant is
a binary one rather than a matter of discretion. However,
whether to proceed to strike out the point(s) of dispute is
an evaluative, discretionary question.
Although 47PD para 13.10(1) contains a wide discretion to
allow supplemental points of dispute or variations, there is
no presumption they will be permitted (or refused). The Civil
Procedure Rules provide no guidance on how the power
should be exercised beyond the fact it must be exercised in
accordance with the overriding objective, including dealing
with cases “justly and at proportionate cost”.
If I were to personify Ainsworth, it would be in the form
of Judge Dred declaring “I am the law”. Compliance is not
optional. The lesson to be learned from Ainsworth and the
subsequent line of authorities is those engaged in legal costs
must remain astute in their understanding of the rules, and
their duties to the court and opponents. The Senior Costs
Judge – Master Rowley – recently called for an inquiry to
improve & streamline the use of bills, points of dispute & replies
at detailed assessment. It remains to be seen whether there
will be any further developments in this area of costs law and
practice in the future.
PARTNERS IN COSTS
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