CELTIC BIOENERGY LIMITED v KNOWLES LIMITED

There is no presumption that late or successive Points of Dispute must be admitted. Under Civil Procedure Rules 1998 Part 47 and the overriding objective, the costs judge has a broad discretion to admit, exclude or condition a variation. Relevant considerations include when the point became available, the explanation for delay, the introduction of a new issue, the need for further evidence or an adjournment, prejudice, proportionality and the efficient use of court resources. A point may be refused as too late even without an ambush. On appeal, the decision will stand unless wrong or unjust because of a serious procedural irregularity and outside the generous ambit of reasonable disagreement.

The defendant appealed against a Master’s refusal to admit a third version of its Points of Dispute in a detailed assessment of the claimant’s costs. The proposed amendment raised, for the first time shortly before the hearing, an issue concerning the claimant’s conditional fee agreement and compliance with the indemnity principle.

The relevant information had been available in a solicitor’s statement for about a year and the conditional fee agreement had also been mentioned in the Bill of Costs. The Master concluded that the point was too late and that admitting it would probably require an adjournment and further evidence. The central issue was whether he had erred in principle or acted unjustly in exercising his discretion.

1. Appeal dismissed. The Master’s refusal to admit the supplementary Points of Dispute was an unimpeachable exercise of the discretion under Civil Procedure Rules 1998 Part 47 and the overriding objective.
2. There was no rule or presumption requiring documents to be accepted regardless of lateness or the number of new points raised. The discretion was broad and had to be exercised in all the circumstances, including the need to decide the assessment justly and at proportionate cost. The ambush concern was not the only relevant consideration.
3. The proposed CFA issue had been available from January 2019, when the paying party received a solicitor’s statement explaining the funding arrangement. It was also apparent from the Bill of Costs that the work was undertaken under a conditional fee agreement. The paying party’s advisers successively overlooked the material, delayed after counsel identified the issue, and sought permission only at the hearing.
4. The Master was entitled to weigh the newness of the issue, the delay, the possibility of further witness evidence, the likely adjournment, inconvenience and additional expenditure against the fact that the point might have legal merit. The possible strength or depth of the CFA argument did not compel admission.
5. The criticisms of the Master’s reasons failed. He addressed the relevant matters proportionately. An ex tempore judgment need not answer every submission, provided the losing party can understand why it lost. The transcript clarified the reasoning where necessary.
6. The appellate court could not interfere merely because it might have balanced the factors differently. No error of principle, relevant omission, procedural irregularity or decision outside the permissible range had been shown.

• High Court (Queen’s Bench Division): Mrs Justice Foster DBE dismissed the defendant’s appeal against the Master’s decision of 18 February 2020. Master Whalan, sitting as assessor, agreed with the reasoning and conclusions.
• Senior Courts Costs Office: The Master refused permission to rely on a third, supplementary version of the Points of Dispute, holding that the CFA issue was too late.