Paul Ward v Gagandeep Rai

Points of Dispute in detailed assessment proceedings must identify the specific items challenged and state concisely the nature and grounds of dispute. Compliance with that requirement is a binary question, although the consequential decision whether to strike out defective points, or permit a late variation, is discretionary. The discretion under paragraph 13.10(2) of PD 47 is wide but must further the overriding objective, including fairness, proportionality, saving expense, expedition and compliance with procedural rules. A substantial late schedule which supplies the missing particularity may properly be refused where it causes an unnecessary adjournment and additional costs, particularly when the default is entirely the paying party’s responsibility. An appellate court may intervene where the first-instance judge has erred in principle or failed to balance the relevant factors fairly.

The appellant had been the receiving party in personal injury proceedings and commenced detailed assessment proceedings against the respondent. The respondent’s Point 23 challenged 134.1 hours of documentary work in general terms, without identifying the individual bill items or linking objections to particular entries. It stated that an annotated schedule would be provided.

The schedule was served approximately two working days before the listed assessment hearing and identified specific objections, together with materially different hours claimed. The Deputy Costs Judge declined to strike out Point 23 and permitted reliance on the schedule, adjourning the assessment. The appellant appealed on five grounds, principally concerning paragraph 8.2(b) and paragraph 13.10(2) of PD 47. The central issue was whether the Judge’s discretionary case-management decision was wrong in principle.

1. Appeal allowed. The Deputy Costs Judge’s refusal to strike out Point 23 and decision to permit reliance on the annotated schedule were wrong.
2. Point 23 was not compliant with paragraph 8.2(b) of PD 47 or Ainsworth. It made general assertions without identifying the specific bill items challenged or the reasons why each item was disputed. Whether Points of Dispute comply with paragraph 8.2(b) is a binary question. The further decision whether to strike out the defective points is evaluative and discretionary.
3. The Judge did not err merely by recognising that a broad understanding of the case could be obtained from Point 23. Detailed assessment may proceed on a line-by-line basis, and a judge should not simply produce a figure without ensuring a fair process.
4. The power under paragraph 13.10(2) of PD 47 is wide. It permits the court to disallow a variation, permit it on conditions, and impose costs conditions later. That discretion is not unrestricted: it must be exercised consistently with the overriding objective and the streamlined purpose of detailed assessment proceedings.
5. The late schedule supplied substantial missing particularity, was served after the appellant had prepared for the hearing, and caused an unnecessary adjournment. The paying party had known for months that the original Point 23 was challenged and had taken no steps to remedy it. The appellant’s failure to chase the schedule did not justify allowing the late variation. The unfairness to the respondent from refusing it was self-created.
6. The appellate court was entitled to intervene despite the limited review of discretionary case-management decisions. The Judge failed to give sufficient weight to paragraph 8.2(b), Ainsworth, the overriding objective and the streamlined nature of the process. The assessment would have concluded on the listed hearing days had Point 23 and the schedule been excluded.

• High Court (King’s Bench Division): appeal from orders of Deputy Costs Judge Friston dated 6 August 2024. Appeal allowed.