Points of dispute “must be precise and focused”

Asplin: This need not be a lengthy process

Points of dispute (PoDs) in detailed assessments must help the parties and court “determine precisely what is in dispute and why”, the Court of Appeal has ruled.

It upheld a decision by the Senior Costs Judge, Andrew Gordon-Saker, to dismiss overly generalised PoDs made on behalf of Kjerulf Ainsworth in relation to a specific part of a bill raised by his former solicitors, London firm Stewarts Law.

This concerned six entries for time spent on documents over a two-week period, which were supported by 32 timed entries of activities undertaken (called ‘Points of Dispute 10’ in the ruling).

The claimant disputed all the entries and challenged them under seven main heads, such as wholly excessive time expended by fee-earners and too much time claimed generally in relation to preparation.

Stewarts Law complained that it could not provide “any meaningful reply” to these general points – it needed itemised points of dispute.

At first instance, Chief Master Gordon-Saker agreed, asking how the defendant could prepare for a detailed assessment “when they don’t know what is being alleged against them”. The PoDs did not raise a proper challenge to the items and he dismissed them on the basis that the challenge was not properly pleaded.

This decision was upheld on appeal a year ago by His Honour Judge Klein sitting as a High Court judge.

Giving the ruling of the Court of Appeal, Lady Justice Asplin said paragraph 8.2 of practice direction 47 “makes it absolutely clear that points of dispute should be short and to the point and, therefore, focused”.

PoDs must enable the parties and the court “to determine precisely what is in dispute and why”. They must not only identify general points and matters of principle but also specific points stating concisely the “nature and grounds of the dispute”.

Asplin LJ said: “In the case of a solicitor and own client assessment, it seems to me, therefore, that in order to specify the nature and grounds of the dispute it is necessary to formulate specific points by reference to the presumptions contained CPR 46.9(3) which would otherwise apply, to specify the specific items in the bill to which they relate and to make clear in each case why the item is disputed.

“This need not be a lengthy process. Having explained the nature and grounds of dispute succinctly, the draftsman should insert the numbers of the items disputed on that ground in the relevant box.

“The principle is very simple. In order to deal with matters of this kind fairly, justly and proportionately, it is necessary that both the recipient and the court can tell why an item is disputed. The recipient must be placed in a position in which it can seek to justify the items which are in dispute.”

She said that PoDs, even in solicitor and own client assessments, should adopt the format of Precedent G “to the extent practicable and that the numbers attributed to the individual items to which a complaint relates should be set out in the appropriate box”.

The PoD at issue fell short as a result. Asplin LJ said: “It seems to me that that decision falls within the wide ambit of the court’s discretion under CPR r3.4(2)(b) and or (c).

“The Chief Master was entitled to decide that it was not possible to conduct a fair hearing on the basis of Points of Dispute 10 as pleaded, the matter could not be conducted fairly ‘on the hoof’ and was likely to take too long.

“Despite his very considerable experience in these matters the Chief Master himself noted that, having read the papers in the light of the points of dispute as they were pleaded, he was unable to identify which particular items were challenged or why and Mr Poole accepted that that was the case.

“It follows that I consider that the judge was entitled to take the course he did which was well within the ambit of the proper exercise of his discretion and, for all the reasons to which I have referred, this appeal should be dismissed.”

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