Edinburgh v Fieldfisher LLP

Under CPR 46PD para 6.15, a party may generally vary points of dispute, but the court may disallow a late variation or impose conditions. The discretion must be exercised consistently with the overriding objective and with fairness and proportionality in mind. Relevant considerations include whether the original points gave any substantive notice, the explanation for delay, the likely need for an adjournment and additional costs, and the prejudice caused to the opposing party. The factors in the overriding objective are not a rigid checklist. At the permission stage, an appeal against the exercise of a case-management discretion requires an arguable error of approach and a real, rather than fanciful, prospect of success.

Mr Jason Edinburgh appealed against a decision of Master James in the Senior Courts Costs Office concerning the detailed assessment of costs charged by Fieldfisher LLP. The Master had refused permission to serve supplementary points of dispute shortly before the assessment hearing, after the points originally served contained no substantive challenge to the bill. The resulting assessment allowed most of the costs claimed.

Permission to appeal had been refused on the papers. The renewed application concerned whether the Master had erred in exercising the discretion under CPR 46PD para 6.15, including by failing to take account of the overriding objective or taking account of irrelevant considerations.

1. Permission refused. The proposed appeal against the Master’s case-management decision had no real prospect of success.
2. CPR 46PD para 6.15 establishes a default entitlement to vary points of dispute, but gives the court a general discretion to disallow the variation or allow it on conditions. The discretion is important because late supplementary points may ambush the opposing party and cause unfairness. It must be exercised in accordance with the overriding objective, including dealing with the dispute justly and at proportionate cost.
3. The Master was entitled to treat the points served in August as providing no substantive notice of the grounds of dispute. One point challenged service on a technical basis and the other merely reserved a right to dispute the bill later. The death of the appellant’s brother and the separate litigation did not adequately explain the delay, particularly because the timing of the latter was unclear.
4. The Master was entitled to consider that allowing the supplementary points, served about 90 minutes before the hearing, would probably require an adjournment and further costs. The possible reduction in the bill did not outweigh the failure to raise substantive objections in good time.
5. The matters listed in the overriding objective are not a rigid checklist. The decision-maker need not expressly address every factor in every case, provided the key considerations relevant to the particular decision have been addressed. The Master had focused on the fairness of considering substantive objections presented immediately before the hearing.
6. The approach was within the generous ambit within which reasonable disagreement is possible, applying G v G (Minors: Custody Appeal) [1985] 1 WLR 647, as cited in Tanfern Ltd v Cameron-Macdonald [2000] 1 WLR 1311. The permission threshold in Swain v Hillman [2001] 1 All ER 91 was not met.

1. High Court (Queen's Bench Division): renewed application for permission to appeal refused. The decision of Master James was not disturbed.
2. Senior Courts Costs Office: Master James refused permission to serve supplementary points of dispute and assessed the costs after the substantive objections were disallowed.
3. High Court: permission to appeal had previously been refused on the papers by Freedman J.