Mount Eden Land Ltd v Speechly Bircham LLP

Points of Dispute in a detailed assessment must state the nature and grounds of each challenge sufficiently clearly to enable the opposing party and the court to understand and address it at proportionate cost. General assertions that charges are excessive or unsupported are inadequate where a party seeks a line-by-line assessment. An experienced costs judge has a broad case-management discretion to stay an assessment where the required procedure cannot fairly and proportionately be conducted because the points of dispute remain defective. An appellate court should be cautious before interfering with such a decision.

Mount Eden challenged paid invoices rendered by Speechly Bircham LLP for solicitor’s work. The challenge proceeded under section 70 of the Solicitors Act 1974. Master Campbell directed Mount Eden to particularise its Points of Dispute and later ordered a schedule identifying the remaining disputed items.

Mount Eden supplied a schedule relying principally on the general descriptions “excessive” and “no supporting evidence”. The Master held that it failed to comply with his order and stayed the detailed assessment. Mount Eden sought permission to appeal and appealed those decisions. The central issues were whether the schedule was adequate and whether the stay was a permissible case-management decision.

1. Permission and outcome. Permission to appeal was granted, but the appeal was dismissed.
2. The Master was entitled to assess the schedule against the requirements of the Costs Practice Direction. The order requiring a schedule of disputed items was made in the context of a need for amended Points of Dispute. It therefore required the nature and grounds of the dispute to be stated concisely and with sufficient particularity.
3. Descriptions such as “excessive” and “no supporting evidence” gave only the most general indication of the complaints. A charge may be excessive for several reasons, and the reason relied upon must be identified. Where practicable, the figure sought should also be stated. The schedule’s reference to time sheets rather than the relevant bill breakdowns made the dispute still harder to understand.
4. The Master was entitled to conclude that the original Points of Dispute and the schedule did not permit the line-by-line assessment which Mount Eden required. Mount Eden could not insist upon that procedure and then retreat to the defective original Points when the amended schedule failed.
5. The stay was a robust but permissible exercise of case-management discretion. The Master was entitled to consider fairness to Speechly Bircham, proportionality, the likely cost of the assessment, the consequences of the one-fifth rule, and the fact that sampling had been suggested only after Mount Eden had insisted upon a line-by-line assessment. The decision was not plainly wrong.
6. The guidance in Sullivan v Bristol Film Studios Ltd [2012] EWCA Civ 570 did not require sampling or continuation of the assessment in these circumstances. The Master had adjourned the matter to enable proper particularisation, but the required schedule was not provided.
7. The stay did not breach Article 6 ECHR. The inability to conduct the required assessment resulted from Mount Eden’s instructions and failure to particularise its complaints, rather than denial of a fair hearing by the court. CPR 3.9 was not engaged because the stay was not relief from sanctions, and CPR 3.3(5) was not engaged because the order was not made of the court’s own initiative.

High Court (Queen’s Bench Division): Master Campbell made decisions on 1 May and 15 August 2013 rejecting the schedule and staying the detailed assessment. Teare J granted permission to appeal and dismissed the appeal.