MT Construction Limited v Dennis Frieze & Anor

An application to set aside a Default Costs Certificate requires separate consideration of the mandatory and discretionary grounds under Civil Procedure Rules rule 47.12. A party seeking to rely on an agreed extension of time must establish a binding written agreement complying with rule 2.11; a unilateral email recording a disputed earlier conversation, followed by silence, is insufficient. Where the mandatory ground fails, the court applies the Denton framework. Serious and significant default, inadequately explained by workload or an objectively unreasonable belief in an extension, will not normally be displaced by the existence of general draft Points of Dispute or alleged issues on assessment. The applicant must show good reason for the detailed assessment to continue, considering promptness, proportionality and compliance with the rules. The court may nevertheless vary the certificate to correct an undisputed VAT element.

The claimant obtained an injunction order requiring the defendants to pay its costs on the indemnity basis, subject to detailed assessment, and received £20,000 on account. A Service Pack was served by post and delivered on 20 October 2025. Points of Dispute were due on 11 November, but were not served by then. The defendants later applied to set aside the Default Costs Certificate, relying on an alleged agreement extending time and on the existence of issues requiring assessment.

The court considered whether the certificate had been obtained improperly, whether there was good reason for the detailed assessment to continue, and whether the certificate should be varied to remove VAT.

1. Application refused; certificate varied. The defendants failed on both the mandatory and discretionary grounds under Civil Procedure Rules rule 47.12. The Default Costs Certificate was varied under rule 47.12(2) from £47,005 to £39,271 to remove VAT, and the £20,000 payment on account was to be credited against the varied sum.
2. The Service Pack was validly served and delivered on 20 October 2025. The 21-day period under rule 47.19 expired on 11 November 2025. The email sent by the defendants’ solicitors on 8 November did not create a binding extension under rule 2.11. It was unilateral, purported to record a disputed oral conversation, and was not accepted by the claimant. The claimant’s immediate email asserting the original deadline was inconsistent with agreement.
3. On the discretionary ground, the principles in Denton v White applied. The breach was serious and significant because no Points of Dispute were served by the deadline or for several months afterwards. The reasons advanced—an alleged mistaken belief in an extension and pressure of other commitments—were insufficient. There was no adequate evidence of supervision, correspondence handling or diary-management systems, and the belief in an extension was not objectively reasonable.
4. The existence of draft Points of Dispute did not itself establish good reason for the assessment to continue. The draft was general and lacked particularity. In the circumstances, continuation of the assessment would also be disproportionate, particularly given the level of costs incurred for the hearing.
5. The delay in issuing the application was relevant to promptness. The later intervention by the SRA did not explain the earlier delay. The claimant succeeded in resisting the application and was awarded its summarily assessed costs of £4,250.

The judgment concerns a first-instance application to set aside a Default Costs Certificate. No appellate history is stated in the judgment.