Should the court hear interim applications before Provisional Assessment?
An interesting decision for our very own Adam Hood in the matter of Maidens v Building Supplies Distribution Ltd [2026] EWCC 25 (15 April 2026). Here the Claimant had raised issues as to the compliance of the Defendant's Points of Dispute relying on the case of Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178.
The Defendant made an application for determination of the Ainsworth issues at a preliminary hearing prior to the Provisional Assessment. They asked the court to declare that the Points of Dispute were compliant.
In short the Claimant contended that:
a) Compliance with Ainsworth is a qualative issue for the judge conducting provisional assessment
b) Determining discrete issues in advance would interfere with the provisional assessment regime and set an undesirable precedent.
c) It would feter the discretion of the costs judge, particularly if it were a different judge addressing the application.
d) The Defendant was seeking to censor the criticisms of the Points of Dispute by the Claimant which was not appropriate.
e) The Defendant should have sought to transfer the matter to Detailed Assessment.
The court held that:
a) the court had jurisdiction to hear an application within the Provisional Assessment process but "the Court retains its general powers to deal with discrete procedural issues."
b) Provisional assessment was designed "to provide a self-contained and proportionate mechanism for resolving lowe-value costs disputes" and "to avoid the proliferation of interim hearings which previously often beset detailed assessments".
c) Further Provisional Assessment is designed to be dealt with on paper and Judges should be equipped for this.
d) The court should approach applications prior to Provisional Assessment with cautious as allowing such applications risks undermining the very purpose of Provisional Assessment.
e) the existence of jurisdiction does not mean it should be exercised.
f) The remaining disputes as to Ainsworth "insofar as they concern the level of detail or the merits of individual items, are matters for the judge conducting the provisional assessment."
The court found that the Defendant was seeking "to preempt that evaluative exercise. That is precisely what the provisional assessment regime is designed to avoid." It was concluded that it was not necessary for the court to determine these until the Provisional Assessment.
The court stated that:
"To entertain this application in circumstances where the dispute is suitable for provisional assessment, particularly in light of the concession made, would set an unwelcome precedent. It would encourage parties to bring interim challenges routinely, seeking to litigate issues by instalments which the rules intend to be resolved in a single, streamlined process. That would undermine the provisional assessment regime, increase costs disproportionately, and place additional burdens on court resources.
That would not be consistent with the overriding objective."
The Claimant was awarded its costs of the application which were allowed at over 6 times the Provisional Assessment cap, exemplifying the court's analysis.
The court, although it dismissed the Defendant's application did not find favour with the argument that the application was an abuse of process within the Provisional Assessment regime.
The headline is that the court has discretion to address any pre-Provisional Assessment applications but should do so very cautiously given the Overriding Objective and in seeking to address low-value costs disputes proportionately.
Link to the judgment - https://www.bailii.org/ew/cases/Misc/2026/CC25.html
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