Fehmida Akhtar v Wilayat Bashir

When deciding whether to set aside a Default Costs Certificate under Civil Procedure Rules 1998, the court must assess the whole procedural context and exercise its discretion fairly. Compliance with the usual requirements for an application, including a good reason and the prescribed supporting documents, remains important. Delay by the applicant, including delay in producing points of dispute, may weigh against relief. However, significant and unexplained differences between related bills of costs, particularly where they may materially affect family assets, can justify setting aside the certificate. The court may permit reliance on points of dispute while making no order for the costs of the application.

The application concerned a Default Costs Certificate obtained after the respondent failed to serve points of dispute by the date stated in a Notice of Commencement. The respondent sought to set aside the certificate under the discretionary provision in Civil Procedure Rules 1998, rule 47.12(2), relying also on the approach in Denton v White [2014] EWCA Civ 906.

The respondent accepted that the first two stages of the Denton approach were not satisfied. The issues were whether the certificate should nevertheless be set aside, whether the respondent could rely on points of dispute served after the application, and how the substantial difference between an earlier legal-aid costs statement and the inter partes bill should affect the exercise of discretion.

1. The Default Costs Certificate dated 11 March 2025 was set aside. The respondent was permitted to rely on the points of dispute dated 26 March 2025.
2. Paragraph 11.2(3) of PD 47 states the general rule that a Default Costs Certificate will be set aside under rule 47.12 only where the applicant shows a good reason and files the bill, certificate and draft points of dispute with the application. The respondent’s application did not initially include the draft points of dispute, and the delay in issuing the application and supplying them was unexplained.
3. The court rejected the contention that the claimant’s costs representatives had refused an extension of time. They had lacked authority to agree one. The Notice of Commencement had also made clear that an application for a Default Costs Certificate would follow failure to serve points of dispute. The claimant’s team therefore had no obligation to obtain further specific instructions before applying, although more could reasonably have been done to alert the respondent’s team to the intended speed of the application.
4. The court considered the Denton approach, accepting that its first two stages were not met. The remaining discretionary assessment nevertheless required consideration of all the circumstances. The claimant’s seven-month delay in serving the bill carried little weight, while the respondent’s unexplained delay and failure to provide the draft points of dispute weighed against relief.
5. The decisive consideration was the approximately 300 per cent difference between the earlier legal-aid costs statement and the inter partes bill. The court accepted that different rates, scopes and methods of presentation could explain some difference, but found the scale of the unexplained increase sufficiently significant, particularly because of its potential effect on matrimonial assets, to justify relief.
6. Neither party was awarded the costs of the application.