Facts of the Case

An appeal was considered in the High Court for the matter of Celtic Bioenergy Ltd v Knowles Ltd [2022] Costs LR 837. The point of discussion was whether the paying party could rely upon information in the third version of their Points of Dispute, a document which they had only sought to rely on one month before the detailed assessment hearing.

Initially, the paying party submitted “Holding Points of Dispute” on 6 September 2019. Then, they presented the receiving party with their “Detailed Points of Dispute” on 26 September 2019. Finally, on the 14 January 2020, the paying party filed their “Supplementary Points of Dispute”. This document contained a further point regarding the Conditional Fee Agreement and the indemnity principle. However, this issue had not been mentioned in the previous versions of the Points of Dispute. This document was submitted just over a month before the detailed assessment hearing was due to take place. In the past, the Court had allowed the paying party to rely upon their second version of the Points of Dispute.

The Court in the first instance, refused to allow reliance upon the “Supplementary Points of Dispute”. Thus, the Paying Party sought permission to appeal this decision before Justice Foster DBE.

Paying Party’s Submissions

Dr Friston, for the Appellant, argued that the most recent version of the Points of Dispute should be allowed because the issue which they were raising had been concealed. He argued that the “information in the narrative of the Bill of Costs did not repeat the detail to be found in the statement of January 2019”. Furthermore, he highlighted that “the centrality to costs of a CFA when considering possible issues concerning possible issues concerning the indemnity principle put an obligation on a party to refer properly to the terms of the CFA in the narrative.” The Appellant used Practice Direction 47 para 5.11 (3) to support this proposition.

Moreover, the Appellant argued that there was not a specific rule which stated that all issues needed to be raised in the first Points of Dispute.

Receiving Party’s Response

The general response from the Receiving Party centered around the assertion that the application to rely upon the third version of the Points of Dispute had been submitted too late, at just over one month before the date of the hearing.

In addition, they stated that the issue which the Paying Party had raised in their third Points of Dispute could have been raised earlier, as they believed that the Paying Party had “overlooked” it.

Judgment

Following consideration, the costs judge was “unpersuaded” by the Paying Party. Justice Foster concluded that the Paying Party could have raised their issue regarding the Bill of Costs and the indemnity principle earlier, as details surrounding this could be found in a document from January 2019.

The judge went on to explain how the recent case of Edinburgh v Fieldfisher LLP Case 34 [2020] Costs LR 549 supported his decision not to allow the appeal as the judge in this matter stated that the court had an “important discretion” when deciding whether late service of amended points of dispute should be allowed. This is because parties should not be allowed to “ambush their opponents by waiting to the last minute to file supplemental points of dispute raising points not previously heralded.”

In accordance with Practice Direction 47 and Civil Procedure Rule 1(2), the costs judge did not allow the appeal and the Paying Party could not use the third version of their Points of Dispute.

Service of Amended Points of Dispute: What are Points of Dispute?

Points of Dispute, also known as a Precedent G, are a document which must be served within 21 days of service of the Bill of Costs. They allow the Paying Party to dispute any items in the Bill of Costs which they do not agree with.

The Paying Party needs to ensure that their Points of Dispute are “short and to the point”. (Practice Direction 47) Moreover, the party can choose to make general points regarding the Bill of Costs such as hourly rates and proportionality challenges. Alternatively or in addition, the party can focus on specific items within the bill. When trying to reduce costs liability, focus on ‘big ticket’ items can achieve the biggest reductions. For further guidance on how to prepare Points of Dispute, a draftsman can look to Practice Direction 47.8.

If a party fails to send their Points of Dispute within the specified timeframe, the Receiving Party can apply to the court for a Default Costs Certificate. If this is approved, the Paying Party will have to pay the full amount of the Bill of Costs.

The Next Step in Detailed Assessment Procedure

Once the Paying Party has served Points of Dispute and the Receiving Party has considered the Paying Party’s disputes, they can construct Points of Reply. This document allows the Receiving Party to defend the costs which they are intending to recover.  Though such replies are optional, we would always recommend that these are prepared to ensure the costs assessor is not left without the full information before them.

Paragraph 12.1 of Practice Direction 47 refers to replies and states that “a reply served by the receiving party under Rule 47.13 must be limited to points of principle and concessions only. It must not contain general denials, specific denials, or standard form responses.”

If the party does not adhere to this direction, the opposing party can seek dismissal of the submissions or the court can request that the document be re-written.

There are no specific statutory costs consequences for late submission of Points of Reply. Nevertheless, in accordance with Pipe v Electrothermal Engineering Ltd (SCCO, 2014), the Paying Party can apply to the Court to disallow detailed assessment costs which relate to the late submission of the Replies.

If both of the aforementioned documents are prepared correctly but the matter has not settled yet, the parties can apply for the detailed assessment proceedings to be finalised at a detailed assessment hearing at the Senior Courts Costs Office (SCCO).

How can ARC Costs Assist?

Our knowledgeable team of Costs Draftsmen and Costs Lawyers can provide a multitude of services for costs disputes.  As independent experts, we can act for either the Paying or Receiving Party.

When acting for the Paying Party, we can prepare Points of Dispute which aim to reduce the costs liability. This document is generally prepared within 7 days, allowing the case to move swiftly and facilitating early settlement. We can also assist in the preparation and service of amended points of dispute.

Opposingly, when acting for the Receiving Party, we can draft comprehensive Bills of Costs and Replies to the Points of Dispute. As an experienced team of costs experts, we can be relied upon to achieve an excellent and consistent amount of recoverable costs.

Alongside our drafting services, our Costs Lawyers can advocate for our clients in court if a Detailed Assessment Hearing is required.

If you would like to find out more information regarding the work that we do, please look to our services and our legal costs pages. To speak to an expert directly, please contact us at info@arccosts.co.uk or via telephone at 01204 397302.

Facts of the Case

An appeal was held in the high court for the case of Celtic Bioenergy Ltd v Knowles Ltd [2022] Costs LR 837. The point of discussion was whether the paying party could rely upon information in the third version of their points of dispute, a document which they had only applied to rely on one month before the detailed assessment hearing.

Initially, the paying party submitted “Holding Points of Dispute” on 6 September 2019. Then, they presented the receiving party with their “Detailed Points of Dispute” on 26 September 2019. Finally, on the 14 January 2020, the paying party filed their “Supplementary Points of Dispute”. This document contained a further point regarding the Conditional Fee Agreement and the indemnity principle. However, this issue had not been mentioned in the previous versions of the Points of Dispute. This document was submitted just over a month before the detailed assessment hearing was due to take place. In the past, the court had allowed the paying party to rely upon their second version of the Points of Dispute.

The court, at first instance, refused to allow reliance upon the “Supplementary Points of Dispute”. Thus, the paying party was granted permission to appeal this decision before Justice Foster DBE.

Paying party’s arguments

Dr Friston, for the appellant, argued that the most recent version of the Points of Dispute should be allowed because the issue which they were raising had been concealed. He argued that the “information in the narrative of the Bill of Costs did not repeat the detail to be found in the statement of January 2019”. Furthermore, he highlighted that “the centrality to costs of a CFA when considering possible issues concerning possible issues concerning the indemnity principle put an obligation on a party to refer properly to the terms of the CFA in the narrative.” The appellant used Practice Direction 47 para 5.11 (3) to support this proposition.

Moreover, the appellant argued that there was not a specific rule which stated that all issues needed to be raised in the first Points of Dispute.

Receiving party’s response

The general response from the receiving party centered around the assertion that the application to rely upon the third version of the Points of Dispute had been submitted too late, at just over one month before the date of the hearing.

In addition, they stated that the issue which the paying party had raised in their third Points of Dispute could have been raised earlier, as they believed that the paying party had “overlooked” it.

Judgement on the matter

Following consideration, the costs judge was “unpersuaded” by the paying party. Justice Foster concluded that the paying party could have raised their issue regarding the Bill of Costs and the indemnity principle earlier, as details surrounding this could be found in a document from January 2019.

The judge went on to explain how the recent case of Edinburgh v Fieldfisher LLP Case 34 [2020] Costs LR 549 supported his decision not to allow the appeal as the judge in this matter stated that the court had an “important discretion” when deciding whether late service of amended points of dispute should be allowed. This is because parties should not be allowed to “ambush their opponents by waiting to the last minute to file supplemental points of dispute raising points not previously heralded.”

In accordance with Practice Direction 47 and Civil Procedure Rule 1(2), the costs judge did not allow the appeal and the paying party could not use the third version of their Points of Dispute.

Service of Amended Points of Dispute: What are Points of Dispute?

Points of Dispute, also known as a Precedent G, are a document which must be served within 21 days of service of the Bill of Costs. They allow the paying party to dispute any items in the Bill of Costs which they do not agree with.

The paying party needs to ensure that their Points of Dispute are “short and to the point”. (Practice Direction 47) Moreover, the party can choose to make general points regarding the Bill of Costs such as hourly rates and proportionality challenges. Alternatively, the party can focus on specific items within the bill. When trying to reduce costs liability, focus on ‘big ticket’ items can achieve the biggest reductions. For further guidance on how to prepare Points of Dispute, a draftsman can look to Practice Direction 47.8.

If a party fails to send their Points of Dispute within the specified timeframe, the receiving party can apply to the court for a Default Costs Certificate. If this is approved, the paying party will have to pay the full amount of the Bill of Costs.

The Next Step in Detailed Assessment Procedure

Once the paying party has served Points of Dispute and the receiving party has considered the paying party’s disputes, they can construct replies. This document allows the receiving party to defend the costs which they are intending to recover.

Paragraph 12.1 of Practice Direction 47 refers to replies and states that “a reply served by the receiving party under Rule 47.13 must be limited to points of principle and concessions only. It must not contain general denials, specific denials, or standard form responses.”

If the party does not adhere to this direction, the opposing party can seek dismissal of the submissions or the court can request that the document be re-written.

There are no costs consequences for late submission of Points of Reply. Nevertheless, in accordance with Pipe v Electrothermal Engineering Ltd (SCCO, 2014), the paying party can apply to the court to disallow detailed assessment costs which relate to the late submission of the Replies.

If both of the aforementioned documents are prepared correctly but the matter has not settled yet, the parties can apply for the detailed assessment proceedings to be finalised at a detailed assessment hearing at the Senior Courts Costs Office (SCCO).

How can ARC Costs Assist?

Our knowledgeable team of Costs Draftsmen and Costs Lawyers can provide a multitude of services for costs disputes.

When acting for the paying party, we can prepare Points of Dispute which aim to reduce the costs liability. This document is generally prepared within 7 days, allowing the case to move swiftly and facilitating early settlement. We can also assist in the preparation and service of amended points of dispute.

Opposingly, when acting for the receiving party, we can draft comprehensive Bills of Costs and Replies to the Points of Dispute. As an experienced team of costs experts, we can be relied upon to achieve an excellent amount of recoverable costs.

Alongside our drafting services, our Costs Lawyers can advocate for our clients in court if a Detailed Assessment Hearing is required.

If you would like to find out more information regarding the work that we do, please look to our services and our legal costs pages. To speak to an expert directly, please contact us at info@arccosts.co.uk or via telephone at 01204 397302.

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