Lauren Wazen v Dr Nasir Khan

Points of dispute in detailed costs assessments must enable the receiving party and the court to identify precisely what is challenged and why. The requirement applies to both inter partes and solicitor-client assessments. The degree of particularity is a case-specific question of fact and degree. Inter partes points of dispute generally require less particularity because the paying party lacks access to the receiving party’s file, but they must still identify the challenged items, by item number or appropriate electronic filtering, and indicate the nature of the challenge. A broad-brush challenge which leaves the receiving party unable to prepare and requires the court to conduct an unfair inquisitorial exercise may be struck out under [2020] EWCA Civ 178.

The claimant and defendant were engaged in a detailed inter partes assessment of clinical negligence costs. The defendant’s point of dispute 3 challenged time claimed for disclosure, settlement negotiations and bill drafting, largely by asserting that the hours were excessive and offering undifferentiated alternative hours. A further challenge sought a general 10 per cent reduction for costs allegedly attributable to another defendant.

The preliminary issue was whether the requirements explained in Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 applied to inter partes assessments and, if so, whether the points of dispute were compliant. The court also determined the remaining costs issues and refused permission to appeal.

1. Application of Ainsworth. The general requirements stated in Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 applied to inter partes assessments as well as solicitor-client assessments. CPR Part 47, Practice Direction 47 and Precedent G were primarily directed towards inter partes assessments. The requirement was one of practical fairness: the document had to enable the parties and the court to determine precisely what was in dispute and why.
2. The required particularity was a case-specific question of fact and degree. Less particularity would normally be required in an inter partes assessment, because the paying party might lack access to the receiving party’s file. Nevertheless, a paying party had to identify the items challenged and the nature of the challenge. Grouping or clumping was permissible within limits. General challenges, such as proportionality, differed from challenges to specific items.
3. In an inter partes assessment, the paying party could often identify items as prima facie excessive and state the amount considered reasonable and proportionate. The offer could be broad brush as to the precise allowance, but the challenged items still had to be identified by item numbers or suitable electronic filtering. The nature of the challenge also had to be stated sufficiently to show what was conceded or offered.
4. The disclosure and ADR challenges did not identify the challenged items and offered an undifferentiated number of hours across different fee-earner grades. They were too broad brush. The claimant could not know which documents to produce, and the court would have had to undertake an unfair and disproportionate quasi-inquisitorial exercise. Those parts of point of dispute 3 were struck out.
5. The bill-drafting challenge was dismissed. The proposed 10 per cent reduction for alleged failure to apportion costs relating to the second defendant was also rejected as arbitrary and insufficiently particularised. The paying party could have used Part 18 questions to obtain further information.
6. Samsung Electronics Co Ltd & Ors v LG Display Co Ltd & Anor (Costs) [2022] EWCA Civ 466 did not apply to detailed assessment. It concerned summary assessment, involved commercial rates, and did not establish the same requirement for compelling justification before departing from guideline rates.
7. The court assessed the hourly rates and allowed £12,000 plus VAT and the court fee in respect of additional work generated by the points of dispute. Permission to appeal was refused because the proposed grounds had no real prospect of success and the case was not a suitable vehicle for further guidance.