The High Court has overturned a decision to allow a non-compliant Point of Dispute. In Ward v Rai [2025] EWHC 1681 (KB) (03 July 2025) the Claimant had submitted that the Defendant's submission on the documents time should be struck out for a lack of particularity (as per Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 & Wazen v Khan [2024] EWHC 1083 (SCCO) & St Francis Group 1 Ltd & Ors v Kelly & Anor [2025] EWHC 125 (SCCO)) and that the Defendant should not be able to rely on an annotated documents schedule that was only served two working days before the Detailed Assessment hearing commenced. The issue meant that was originally intended to be a 2-day Detailed Assessment ran into a further day. The SCCO did not strike out the dispute and allowed the Defendant to rely on the annotated schedule which had been served late. The annotated schedule differed from the Points of Dispute, addressed over 134hrs of time across 24-pages. The Claimant appealed.
The case is a lesson in the need for Points of Dispute to be properly particularised and that late amendments will ordinarily lead to some form of punishment. Here the Defendant's Point of Dispute was stuck out on appeal.
At the initial Detailed Assessment the Defendant had beaten its Part 36 offer and the Judge had ordered that the Defendant pay the Claimant's costs up to the expiry of their Part 36 offer and that the Claimant would pay the Defendant's costs thereafter, subject to an argument about whether the Claimant should meet the costs of the additional third day of assessment proceedings.
Speed Read
Ward highlights the need to properly particularise Points of Dispute and where there is a failure to do so then the same should be struck out, any attempt at a late amendment is also likely to carry adverse consequences:
1. The judgment reinforces that Points of Dispute must be sufficiently particularised. If not the court may strike the same out and not allow the paying party to rely on the same. Disputes must:
"(a) identify any general points or matters of principle which require decision before the individual items in the bill are addressed; and
(b) identify specific points, stating concisely the nature and grounds of dispute." (CPR PD 47 8.2)
The above is mandatory.
2. That the court must ensure it gives proper effect to CPR PD 47 13.10(2) which provides that:
(2) Permission is not required to vary a bill of costs, points of dispute or a reply but the court may disallow the variation or permit it only upon conditions, including conditions as to the payment of any costs caused or wasted by the variation.
3. That consideration must be given the Overriding Objective and the impact of any conduct upon the ability to deal with a case "justly and at proportionate cost". The initial non-compliance and subsequent late service of the annotated schedule had caused the Detailed Assessment to go from a 2-day hearing to a 3-day hearing. This had caused unnecessary expense.
The Grounds of Appeal
The Claimant raised the following grounds of appeal:
1. The Judge's refusal to strike out the documents dispute did not give proper effect to the correct interpretation of PD 47 8.2(b) and wrongly applied Ainsworth.
2. The Judge had misdirected himself in applying a test of whether or not a broad-brush assessment could be carried out in a detailed assessment. This ground of appeal was dismissed on the basis the Judge had accepted it would be inappropriate to carry out the detailed assessment on a broad basis, rather he was considering whether the Claimant should be allowed more time to consider how to respond to the annotated schedule.
3. The Claimant appealed the fact that one of the reasons the Judge declined to strike out the Defendant's dispute was because the Claimant took no steps to chase the Defendant for the annotated documents schedule. The Judge had held that both parties were at fault for failing to comply with the overriding objective and assist the court. The court held that the Judge had not been provided with the authorities now relied and as such it would be wrong to criticise the Judge for failing to take into account a point not raised at the time.
4. That the Judge in permitting the Defendant to rely on the schedule did not accept that the service of it involved an ambush. The court held it would not be fair to interfere on appeal for the same reasons set out at Ground 3 above.
5. That the Judge was wrong to find that PD 47 13.10 provided a Costs Judge with "very wide powers". The court dismissed this holding that: "the Judge was not wrong to say that paragraph 13.10 permitted him to "either allow or disallow an amendment", "to impose conditions, including conditions as to payments of costs" and to impose conditions on costs at a later stage. These were all accurate statements.
He was therefore not wrong to say that paragraph 13.10(2) afforded him "very wide powers": on the contrary, his words chime closely with Foster J's reference in Celtic at [35] to "a wide discretion"."
Decision on Appeal
The court reached the following overall conclusions:
"i) Appears to have accepted that Point 23 of the Points of Dispute alone was not compliant with paragraph 8.2(b) or Ainsworth (Ground 1);
(ii) Did not misdirect himself by finding that a "fairly broad-brush assessment" could have taken place based on Point 23 alone (Ground 2);
(iii) Cannot fairly, in this appeal, be criticised for finding that the Appellant had a duty to chase the Respondent for the annotated document schedule and thus for his related finding that there had not been an "ambush" (Grounds 3 and 4); and
(iv) Correctly identified that his powers under paragraph 13.10(2) were wide (Ground 5)."
The court rejected the Defendant's argument that the adjournment was always inevitable preferring the Claimant's evidence that the third day of the detailed assessment was only necessitated by the Defendant's conduct with regard to the documents submission and late annotated schedule. The court's view was that had the Defendant's dispute been struck out then there would have been no need for a third day.
Further the court stated that:
"126. The Respondent had been on notice that the Appellant's position was that Point 23 was not compliant with paragraph 8.2(b) or Ainsworth since 4 January 2024, some 7 months before the detailed assessment hearing: see [24] above. The Respondent had taken no steps at all to remedy the position until 2 working days before the hearing. This breach of paragraph 8.2(b) is even more egregious than that in Ainsworth, where there had been a period of 5 months' notice of the issue, without it being remedied; and that in Celtic where the Supplementary Points of Dispute had been provided around 1 month before the hearing: see [50] and [101] above.
127. The reason given by the Respondent for the delay in serving the schedule – namely that he hoped that the parties would achieve settlement and avoid the need for a hearing – was, with respect, entirely circular: settlement was surely much more likely to be achieved if the Appellant understood the case against him in detail. Indeed, as Asplin LJ observed in Ainsworth at [38], that is "the very purpose" of Points of Dispute and thus of paragraph 8.2(b): see [16] above.
128. The Appellant had sought a 2 day listing for the detailed assessment hearing. But for the issues over the schedule, that would have been adequate.
129. The Judge's decision meant that the detailed assessment process continued into a third day, leading to additional costs and delay. It is hard to see how that was consistent with the requirement in the overriding objective to deal with the case "justly and at proportionate cost". I say this bearing in mind that this requirement includes "saving expense", dealing with cases "expeditiously" and "enforcing compliance with rules, practice directions and orders": CPR 1.2(2)(b), (d) and (g). The streamlined nature of detailed assessment proceedings was also relevant: see [116] above.
130. The overriding objective, of course, requires that cases be dealt with "fairly", but here, the unfairness to the Respondent that would be caused by Point 23 being struck out and the schedule disallowed was entirely of his own making. It has been specifically recognised in in O'Sullivan and Ainsworth that parties conducting the detailed assessment process in such a way face those risks: see [70] above.
131. The decisions in Ainsworth, the other authorities summarised at [69] above, Edinburgh and Celtic are, of course, fact-specific. However, they illustrate the importance attached to the mandatory elements of paragraph 8.2(b) and the purpose of the detailed assessment procedure. So does the fact that Mr Lyons was not able to take me to a single other case in which a substantial variation to Points of Dispute, this late in the day, has been permitted.
132. I have been very conscious in my deliberations of the limited role for an appellate court when considering an appeal against a discretionary case management decision, as reflected in the authorities summarised at [62]-[65] above. I have nevertheless concluded that the Judge's refusal to strike out Point 23 and his decision to allow the Respondent to rely on the schedule was wrong.
133. For the reasons set out at [114]-[131] above, the Judge's decision failed to give sufficient weight to the requirements of paragraph 8.2(b) and Ainsworth. It failed to ensure that the paragraph 13.10(2) power was exercised in accordance with the overriding objective as required by Edinburgh and Celtic.
134. In my judgment, therefore, the Judge erred in principle in these various respects and did not balance the various factors "fairly in the scales", such that it is appropriate for this court to intervene.
135. These aspects of Grounds 1 and 5 therefore succeed."
Accordingly it was held that the SCCO had not given proper effect to PD 47 8.2(b) (wrongly applying Ainsworth) and failed to ensure that CPR 47 PD 13.10 (2) had been enacted properly; namely that "Permission is not required to vary a bill of costs, points of dispute or a reply but the court may disallow the variation or permit it only upon conditions, including conditions as to the payment of any costs caused or wasted by the variation."
The lesson here is for the need to Points of Dispute to be properly particularised and where they are not then receiving parties must challenge paying parties on the same. Where there are amendments to the Points of Dispute as a consequence then the court needs to give proper consideration as to what sanction flows from that, bearing in the mind the over-riding objective.
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