Ainsworth v Stewarts Law LLP

A party chargeable with a solicitor’s bill has a right to assessment under Solicitors Act 1974, but that right is exercised under the applicable procedural rules and remains subject to case management and proportionality.

In a solicitor and own client assessment, points of dispute must be short and focused, but must also identify the particular items challenged and concisely state the nature and grounds of each challenge. General objections to all items, without linking grounds to particular items, do not enable a fair or proportionate hearing. The court may dismiss an inadequately pleaded challenge where the deficiency has not been cured despite a proper opportunity to amend.

The appellant had instructed the respondent solicitors in relation to financial claims following the breakdown of a relationship. After ending the retainer, he sought a solicitor and own client assessment of three invoices under Solicitors Act 1974.

His points of dispute challenged all document-time entries by general objections, including duplication and excessive time, but did not identify which entries were challenged on which ground. The Senior Costs Judge dismissed that point of dispute as inadequately pleaded. He also refused an adjournment to permit further pleading; that refusal was not appealed.

His Honour Judge Klein, sitting in the High Court, dismissed the first appeal: [2019] EWCA Civ 897. The central issue was the required degree of particularity in points of dispute in a solicitor and own client assessment, and whether dismissal of the pleaded challenge was a permissible case-management decision.

1. Appeal dismissed. Lady Justice Asplin held, with whom Lord Justice Peter Jackson and Lord Justice Lewison agreed, that the appellant’s challenge to the document-time items had properly been dismissed.

2. Section 70 of the Solicitors Act 1974 gave the party chargeable a right to obtain an assessment and required the costs officer to assess the bill. Neither right nor duty was absolute. An assessment under the Act is conducted under the applicable rules of court, including the court’s case-management powers. A contrary construction would create an ungovernable entitlement to a hearing of indeterminate and potentially disproportionate length.

3. CPR rr 46.9 and 46.10 govern solicitor and own client assessments. CPR Part 47 supplies the applicable procedural guidance as to the form of points of dispute, subject to r 46.10 and any contrary order. Paragraph 8.2 of Practice Direction 47 therefore required focused points which identified general issues and then specific points stating the nature and grounds of dispute.

4. In such an assessment, the drafter must formulate challenges by reference to the presumptions in CPR r 46.9(3), identify the particular bill items to which each challenge relates, and explain succinctly why each item is disputed. Precedent G was only an illustrative party-and-party form, but should be followed so far as practicable. Its form did not excuse the absence of item-specific grounds where the client had inspected the solicitor’s file.

5. Point of Dispute 10 did not meet those requirements. It made general objections to all entries, expressly treated its list as non-exhaustive, and failed to say why any individual item was challenged. It did not permit the solicitors or the court to identify and prepare for the actual issues.

6. The Senior Costs Judge was entitled, within the discretion under CPR r 3.4(2)(b) and/or (c), to dismiss the point rather than conduct an improvised broad-brush exercise. The appellant had received five months’ warning of the defect, had access to the file, and had not amended his pleading. The judge below was therefore entitled to uphold that case-management decision.

• Court of Appeal (Civil Division): dismissed the appeal and upheld dismissal of Point of Dispute 10.
• High Court (Chancery Division): His Honour Judge Klein, sitting as a High Court Judge, dismissed the appeal from the Senior Costs Judge: [2019] EWCA Civ 897.
• Senior Costs Judge: Chief Master Gordon-Saker dismissed Point of Dispute 10 as inadequately pleaded in the detailed assessment.