How much detail must a paying party provide when challenging a bill of costs and what happens if that detail arrives at the 11th hour?
At A Glance
Points of Dispute still need to be properly particularised -
The Court of Appeal reaffirmed the importance of complying with CPR 47 PD 8.2 and the approach set out by Ainsworth. Vague or insufficiently detailed objections can still be struck out.
Non-Compliance does not automatically mean strike-out -
The decision confirms that judges retain discretion over how procedural failures are dealt with, including whether late material should be allowed.
Late submissions can still carry consequences -
Although the paying party was permitted to rely on the late schedule, the hearing had to be adjourned and costs consequences remained available as a sanction
Background
The case arose from a dispute over legal costs, where the party responsible for paying the bill challenged a number of charges relating to work carried out on documents. Although their Points of Dispute referred to a more detailed schedule explaining those objections, the schedule was not provided at the time. Instead, it was served just two days before the detailed assessment hearing, leading to a dispute over whether the late information should be considered at all.
What Happened?
1.) The Legal Costs were challenged
The paying party disputed a number of charges relating to work carried out on documents and proposed reductions to the amount claimed.
2.) A detailed schedule was missing
Their Points of Dispute referred to an annotated schedule containing more specific objections, but this schedule was not provided at the same time.
3.) The receiving party challenged the objections
The receiving party argued that the objections did not clearly explain what was being disputed or why, and asked for the relevant Points of Dispute to be struck out
4.) The schedule arrived just before the hearing
Only two days before the two-day Detailed Assessment hearing was due to begin, the paying party served the missing schedule setting out it’s detailed objections.
5.) The judge allowed the schedule to be used
The Deputy Costs Judge permitted the paying party to rely on the late schedule. The hearing was extended to a third day, with the possibility of costs consequences being imposed because of a late filing.
6.) The case reached the Court of Appeal
After the High Court overturned that decision, the paying party appealed again. The court of appeal ultimately restored the Deputy Costs Judge’s original decision finding that the judge had been entitled to exercise their discretion in allowing the late schedule.
What did the Court of Appeal Decide?
The Court of Appeal restored the Deputy Costs Judge’s original decision to allow the paying party to rely on the late-filed schedule. In doing so, the Court confirmed that although Points of Dispute must comply with the legal requirements of CPR 47 PD 8.2 and the approach set out in Ainsworth v Stewarts Law LLP, a failure to do so does not automatically mean that the disputed points must be struck out
The key findings were that:
- Points of Dispute should still clearly identify what is being challenged and explain the reasons for the objection.
- Non-compliance with those requirements can still result in Points of Dispute being struck out, either in whole or in part.
- However, strike out is not an automatic consequence of every procedural failure.
- Judges retain a broad discretion when deciding how to deal with non-compliance, including whether late material should be admitted.
- In this case, the Deputy Costs Judge was entitled to allow the late-schedule to be relied upon, while leaving open the possibility of costs consequences as a sanction.
- The High Court had gone too far by substituting it’s own view for a decision that fell within the Deputy Costs Judge’s legitimate legal discretion.
The decision therefore does not give parties permission to serve vague Points of Dispute or delay providing detailed objections. Instead, it reinforces the importance of properly particularised submissions while confirming that the court has flexibility in deciding how procedural failures should be dealt with in the circumstances of each case.
What Does CPR 47 PD 8.2 Require?
CPR 47 PD 8.2 requires a party challenging legal costs to set out their objections with enough detail for the other side to understand exactly what is being disputed and why. General or broad objections may not be enough, particularly where they do not identify the individual items being challenged, or explain the basis for the proposed reductions. In Ward v Rai, this requirement was central to the dispute because the more detailed, item-specific objections were contained in a separate schedule that had not originally been served with the Points of Dispute.
What does this mean for paying parties?
Paying Parties should not treat Ward v Rai as permission to provide vague or incomplete Points of Dispute. The Court of Appeal made it clear that objections should still be properly particularised and explain what is being challenged and why.
- Detailed objections should be provided at the proper stage.
- Non-compliant Points of Dispute can still be struck out in whole or in part.
- Late submissions may be permitted, but this will depend on the circumstances.
- Costs consequences or other sanctions may still follow where material is served late.
The safest approach therefore, remains to set out objections clearly and fully from the outset, rather than relying on the court exercising it’s discretion later.
What does this mean for receiving parties?
Receiving parties should be aware that procedural non-compliance does not necessarily mean that objection will automatically be struck out. The court retains discretion when deciding how to deal with late or insufficiently detailed submissions.
- Non-compliance can still be challenged where Points of Dispute lack sufficient detail.
- Strike-out remains possible but it’s not guaranteed.
- The court may allow late material if it considers that appropriate.
- Receiving parties may instead seek costs consequences where late submissions cause additional work or delay.
The decision therefore reinforces the importance of identifying any prejudice caused by late or inadequate submissions, rather than relying solely on the procedural breach itself.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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