Court of Appeal—challenging solicitors’ costs requires detailed points of dispute (Ainsworth v Stewarts Law LLP)

Court of Appeal—challenging solicitors’ costs requires detailed points of dispute (Ainsworth v Stewarts Law LLP)

The Court of Appeal has made it clear that when seeking solicitor-own client costs assessment, under section 70 of the Solicitors Act 1974, it is essential to provide details as to what is disputed and why. A generic ‘I have been charged too much’ will not suffice. Written by Dominic Regan, professor at the City Law School, London.

Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178[2020] All ER (D) 109 (Feb)

What are the practical implications of this case?

The Court of Appeal judgment makes it clear that the days of making a general attack upon an activity are over. In the past it was common to lump together a series of challenges contending that, for example, too much time was expended upon disclosure or perhaps that a lower grade fee-earner ought to have performed a task. That will no longer wash. It is essential to identify exactly what is disputed and why and in doing so the challenge must descend into detail.
On reading the judgment one will see that Stewarts kept exquisitely concise attendance notes. Rather than merely saying ‘perusing documents’ they recorded, for example ‘working on draft letter to Kingsley Napley and reviewing follow up emails for the client.’ That is how time should always be recorded. A challenge could come from your opponent or your client.

What was the background?

This was a second appeal from the decision of the senior costs judge who struck out a challenge to charges made for dealing with documents over a 14 day period. The strike out was because the points of dispute were generic and not specific. The representative of the client relied upon the fact that 46.8 hours of time was recorded over 11 working days, an average of 4.3 hours per day. What he failed to do was to identify a single specific objection and no counter-offers were made either. Everything was disputed but not one item was particularized. This precluded the solicitors from replying.
An appeal to the High Court was dismissed and the Court of Appeal, in a unanimous judgment delivered by Asplin LJ, affirmed that decision.
Longmore LJ had granted permission to appeal because he accepted that the case raised a real issue, namely, ‘How detailed points of dispute should be in a case in which a challenge to a number of items is made on a number of grounds?’.

What did the court decide?

The guidance of the Court of Appeal is important because the rules about points of dispute are slender.
The only indication as to the form which points of dispute must take is to be found in the Practice Direction to CPR 47. CPR PD 47, para 8, where relevant, provides as follows:
'8.2 Points of Dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to this Practice Direction, so far as practicable. They must:
(a) Identify any general points or matters of principle which require decision before the individual items in the bill are addressed; and
(b) Identify specific points, stating concisely the nature and grounds of dispute.’
The Court of Appeal clearly set out the purpose of the points of dispute and the level of detail required. As seen in Asplin LJ’s conclusion at para [38]:
‘Common sense dictates that the points of dispute must be drafted in a way which enables the parties and the court to determine precisely what is in dispute and why. That is the very purposes of such a document. It is necessary in order to enable the receiving party, the solicitor in this case, to be able to reply to the complaints. It is also necessary in order to enable the court to deal with the issues raised in a manner which is fair, just and proportionate.’
The last words illustrate another point made by the Appeal Court, namely, that the Civil Procedure Rules apply to assessment and the overriding objective demands that cases are dealt with justly and at proportionate cost. Specifically, the court’s power to strike out which is found at CPR 3.4(2)(b) and (c) was rightly exercised by the senior costs judge.
The client had known for five months that Stewarts were going to take the point that the challenges were inadequate and so had ample opportunity to correct the deficiencies by way of amending his points of dispute. The senior costs judge was justified in concluding that a fair hearing was impossible and valuable court time would have been wasted had an assessment ‘on the hoof’ been permitted. The client had not prepared properly and the dismissal of his entire challenge on documents was his own fault.

Case details

Court: Court of Appeal
Judges: Lewison, Peter Jackson and Asplin LJJ
Date of judgment: 19 February 2020

This information was first  published on Lexis®PSL Dispute Resolution on 20 February 2020.  

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