MH v CH

The general case-management power in CPR 3.1(7) remains available during provisional assessment unless the specific costs regime expressly excludes it. CPR 47.15(7) concerns challenges to items actually dealt with in a properly constituted provisional assessment. It does not displace CPR 3.1(7) for an antecedent jurisdictional or procedural challenge.

Where the receiving party fails to file the complete points of dispute, the provisional assessment has not properly begun and the 21-day period for requesting an oral hearing is not engaged. A prompt application may therefore set aside the order. The court may also remove the matter from provisional assessment and direct a detailed assessment where that is proportionate.

The applicant sought to set aside a provisional assessment order made after the respondent filed an incomplete bundle. The omitted documents included the annotated bill and a note forming part of the applicant’s points of dispute. The respondent accepted that those documents ought to have been filed and that their omission resulted from mistake.

The applicant applied within seven days under CPR 3.1(7), rather than requesting an oral hearing under CPR 47.15(7). The central issues were whether CPR 47.15(7) excluded the general power to vary or revoke an order, whether the provisional assessment was properly constituted, and whether the threshold for setting aside had been met.

1. Jurisdiction under CPR 3.1(7). CPR 3.1(1) makes the general case-management powers available in addition to powers conferred by specific rules. CPR 47.15(7) and CPR 3.1(7) can operate together. The former governs challenges to items within a provisional assessment; the latter remains available for matters external to those items, including whether the assessment was procedurally valid.
2. Scope of CPR 47.15(7). The reference to challenging “any aspect” of a provisional assessment is confined by the context of CPR 47.15 and the wider detailed-assessment code. It concerns items derived from the bill and the points of dispute. A challenge to the constitution or jurisdiction of the provisional assessment is different from an objection to the substantive determination of an assessed item.
3. Failure to file complete objections. Under PD 47 para 14.3(e), the receiving party must file completed Precedent G, including the points of dispute and any reply. That obligation extends to all documents comprising the paying party’s objections. The omission of the complete points of dispute was fundamental. The court could not fairly determine the issues, so no provisional assessment within the meaning of CPR 47.15 had properly been undertaken. The time for requesting an oral hearing therefore had not begun.
4. Set aside. Applying the principles in Tibbles v SIG PLC [2012] EWCA Civ 518, the accepted omission misstated the basis on which the assessment proceeded. The application was prompt, the breach was serious and significant, and the court had undertaken an erroneous assessment without the full arguments. Those circumstances comfortably satisfied even the higher threshold applicable if the order were final. The order was set aside under CPR 3.1(7). The same facts would constitute exceptional circumstances under CPR 47.15(7).
5. The matter was removed from the provisional-assessment process under CPR 47.15(6) and directed to proceed as a detailed assessment. Issues concerning CPR 44.11, contempt, misconduct and any concluded costs agreement were left for determination at the relisted hearing.