Danny O'Sullivan v Holmes and Hills LLP

Points of Dispute in a solicitor-and-own-client costs assessment must identify the particular work challenged and state concisely the nature and grounds of the challenge. A generic assertion that work was unnecessarily incurred or unreasonable in amount is insufficient where the bill contains detailed schedules of timed entries. Those are alternative allegations with different consequences, and the solicitor must know which applies to each challenged unit of work. Proportionality does not justify depriving the receiving party of a fair opportunity to understand and answer the case. The paying party controls proportionality by limiting the entries challenged. Failure to comply with the Practice Direction requires dismissal of the relevant point of dispute.

The claimant instructed the defendant solicitors in a successful personal injury claim. He later challenged the amount deducted from his damages and commenced detailed assessment proceedings under section 70 of the Solicitors Act 1974.

The District Judge provisionally assessed two document-related items and rejected the defendant’s application to vary that assessment. The Points of Dispute stated only that the document time was unnecessarily incurred or unreasonable in amount, while the underlying schedules contained numerous individual entries. The defendant appealed, principally relying on the guidance in Ainsworth v Stewarts Law LLP. The central issue was whether those Points of Dispute complied with CPR 47 Practice Direction paragraph 8.2.

1. Appeal allowed. The District Judge should have dismissed Points of Dispute 7.1 and 7.2 because they failed to state adequately the nature and grounds of the dispute.
2. CPR 47 Practice Direction paragraph 8.2 requires specific points identifying concisely the nature and grounds of dispute. In a bill containing schedules of timed work, the receiving party must be able to identify which individual entries are challenged and why.
3. The phrase “unnecessarily incurred” alleges that work should not have been done. “Unreasonable in amount” alleges that work was reasonably undertaken but was excessive or inaccurately recorded. They are materially different allegations, and a generic alternative formulation does not fairly identify the case to be answered.
4. The guidance in Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 was interpreted as requiring sufficient detail to identify the challenged entries and the grounds of challenge. The fact that the court could conduct an assessment from the schedules did not cure the procedural unfairness.
5. Proportionality does not require the court to accept vague Points of Dispute. The paying party may challenge only selected, more valuable entries. If it elects to challenge every entry, the resulting work is a consequence of that choice.
6. The Points of Dispute did not need to engage with the presumptions in CPR 46.9(3), because those presumptions were not factually put in issue. The District Judge erred in finding that they had been engaged, but that error was not determinative.
7. The formal result was that the appeal was granted and the disputed Points of Dispute were to be dismissed.

• High Court (King's Bench Division): appeal from the decision of District Judge Batchelor dated 6 May 2022 allowed.
• Detailed assessment: District Judge Batchelor had refused to vary her provisional assessment under CPR 47.15.