Niki Christodoulides v CP Christou LLP

Points of Dispute in detailed assessment proceedings must identify the items challenged and state concisely the nature and grounds of each dispute. Wholesale failure to do so may make a fair, proportionate and manageable assessment impossible and justify striking out the non-compliant points. Compliant points within an otherwise defective document should not be struck out merely because other points fail. A costs judge may exercise the freestanding power under Civil Procedure Rules 1998, rule 44.11 in relation to misconduct in the assessment proceedings, but ordinarily cannot use it to reopen matters determined, or which should have been raised, in the substantive litigation. Realistic hearing estimates are required as part of the duty to assist the court.

The claimant was the paying party in a detailed assessment of her former solicitors’ costs. Her 32-page Points of Dispute contained allegations of misconduct, failed to identify any bill item, and did not explain what reductions were sought or why. Three points were conceded to be sufficiently identified to proceed.

The claimant also sought to revive allegations concerning trial transcripts and privilege which had been raised, or could have been raised, in earlier professional negligence proceedings and related appellate steps. The preliminary issues were whether the Points of Dispute should be struck out and whether the misconduct allegations could survive independently under rule 44.11.

1. Points of Dispute. Under paragraph 8.2 of Practice Direction 47, Points of Dispute must be short, focused and concise. They must identify general points of principle and specific disputed items, stating the nature and grounds of dispute. Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 supplied binding guidance. The purpose is to enable the receiving party to answer the challenge and the court to conduct the assessment fairly and proportionately.
2. The claimant’s Points of Dispute were prolix, unfocused and virtually incomprehensible. They did not identify any bill item or the reductions said to follow. The defects made a fair and manageable assessment impossible. Subject to points 1, 31 and 49.6, the Points of Dispute were struck out. The compliant points were retained because there was no principled basis for an all-or-nothing strike-out.
3. Conduct allegations. Rule 44.11 provides a freestanding punitive power to reduce costs for misconduct, without requiring a connection to particular bill items: Gempride Ltd v Bamrah [2018] EWCA Civ 1367. Such allegations may be raised separately from Points of Dispute. However, the jurisdiction ordinarily concerns misconduct in the assessment proceedings and cannot provide a second opportunity to challenge matters determined, or capable of being determined, in the substantive litigation.
4. The allegations concerning transcripts and privilege were struck out. They were precluded by issue estoppel and the rule in Henderson v Henderson (1843) 3 Hare 100, as explained in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 and Finzi v Jamaican Redevelopment Foundation Inc [2023] UKPC 29. They were also insufficiently precise, disproportionate to investigate, and devoid of an arguable basis. The transcript complaints had already been rejected on appeal.
5. Finally, parties must provide realistic hearing estimates. Failure to do so breaches the duty under rule 1.3 of the Civil Procedure Rules 1998 to help the court further the overriding objective and may attract sanctions, including under rule 44.11.

The remaining assessment issues, including costs and consequential matters, were relisted.

Not an appeal. The judgment records that:

• High Court: Knowles J struck out the claimant’s professional negligence claim on alternative grounds and ordered indemnity costs.
• Court of Appeal: Stuart-Smith LJ refused permission to appeal, rejecting the transcript complaints.
• Senior Courts Costs Office: the present court struck out the substantially non-compliant Points of Dispute, preserving three sufficiently compliant points.