CPR 47.9: When are Points of Dispute Due?

When involved in legal proceedings, the general rule of thumb is that the winning party can claim their legal costs from the losing party by applying to commence Detailed Assessment proceedings.

This is done by submitting copies of the Bill of Costs alongside a Notice of Commencement. The Paying Party (or any other party involved in the assessment) must serve Points of Dispute within 21 days of being served with the Bill of Costs formally, if they wish to challenge items in the bill of costs.  An extension can be agreed between the parties as to the aforementioned deadline, and this is particularly common if negotiations are ongoing.

Points of Dispute must be served on the Receiving Party and all other relevant parties, but notably they do not need to be filed at Court (at this juncture). A Detailed Assessment Hearing may be required if parties cannot reach an agreement as to costs using the Detailed Assessment process.

Contents of Points of Dispute

CPR 47.9 primarily sets out the rules in relation to Points of Dispute in detailed assessment proceedings, as supplemented by Practice Direction 47, Paragraph 8.

Within PD 47 8.2 it is stated that Points of Dispute 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.

There is a balance to be had with regards to content, as Points must not “waffle” and should be clear and concise.  However, there is also a requirement to clearly set out the items being challenged, and the reasons why, failing which the Receiving Party can seek to strike out Points of Dispute for failing to particularise any challenge adequately, pursuant to Ainsworth v Stewarts Law.

Failure to Serve Points of Dispute: Obtaining a Default Costs Certificate

CPR 47.9 enforces strict deadlines for disputing costs in detailed assessment. If a party fails to submit Points of Dispute on time, the Receiving Party can apply to the Court for a Default Costs Certificate, making the full amount of costs listed within the bill of costs payable.

Under CPR 47.9, the deadline for serving Points of Dispute is 21 days from the date of service of the Notice of Commencement.

If this deadline is missed, the defaulting party loses the right to be heard in the assessment proceedings unless they obtain the Court’s permission.

However, If any Points of Dispute are served before the court issues the default costs certificate, then the Court must not issue it (or it is invalid if sealed post date of service of Points).

This means the Paying Party (or any other disputing party) can avoid a Default Costs Certificate by serving their objections on time.

CPR 47.9 states the following:

47.9

“(1) The paying party and any other party to the detailed assessment proceedings may dispute any item in the bill of costs by serving points of dispute on –

(a) the receiving party; and

(b) every other party to the detailed assessment proceedings.

(2) The period for serving points of dispute is 21 days after the date of service of the notice of commencement.

(3) If a party serves points of dispute after the period set out in paragraph (2), that party may not be heard further in the detailed assessment proceedings unless the court gives permission.

(Practice Direction 47 sets out requirements about the form of points of dispute.)

(4) The receiving party may file a request for a default costs certificate if –

(a) the period set out in paragraph (2) for serving points of dispute has expired; and

(b) the receiving party has not been served with any points of dispute.

(5) If any party (including the paying party) serves points of dispute before the issue of a default costs certificate the court may not issue the default costs certificate.

(Section IV of this Part sets out the procedure to be followed after points of dispute have been served.)”

How to Obtain a Default Costs Certificate

The procedure for obtaining this certificate is set out in Practice Direction 47, Paragraph 10, which states the Receiving Party must:

1. Complete and submit Form N254, ensuring it is signed.
2. Include supporting documents allowing for a detailed assessment, including copies of the:

• Court Order permitting detailed assessment (or Part 36 Offer and Acceptance);
• Notice of Commencement

The Receiving Party should file the application at the appropriate Court office as soon as possible.

Paragraph 10 of Practice Direction 47 goes on to state:

“10.1

(1) A request for the issue of a default costs certificate must be made in Form N254 and must be signed by the receiving party or his legal representative.

(2) The request must be accompanied by a copy of the document giving the right to detailed assessment and must be filed at the appropriate office. (Paragraph 13.3 below identifies the appropriate documents).

10.2 A default costs certificate will be in Form N255.

10.3 Attention is drawn to Rules 40.3 (Drawing up and Filing of Judgments and Orders) and 40.4 (Service of Judgments and Orders) which apply to the preparation and service of a default costs certificate. The receiving party will be treated as having permission to draw up a default costs certificate by virtue of this Practice Direction.

10.4 The issue of a default costs certificate does not prohibit, govern or affect any detailed assessment of the same costs which are payable out of the Community Legal Service Fund or by the Lord Chancellor under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

10.5 An application for an order staying enforcement of a default costs certificate may be made either–

(a) to a costs judge or District Judge of the court office which issued the certificate; or

(b) to the court (if different) which has general jurisdiction to enforce the certificate.

10.6 Proceedings for enforcement of default costs certificates may not be issued in the Costs Office.”

Setting Aside a Default Costs Certificate under CPR 47.9

A Paying Party may apply to set aside a Default Costs Certificate under specific circumstances, generally taking into account the guidance of the Denton test for relief from sanctions. The Court must set aside the certificate if it was issued incorrectly, such as when it was granted before the 21-day deadline for serving Points of Dispute.

In other cases, the Paying Party may succeed in setting aside the certificate if they can demonstrate to the Court that there is a good reason for the detailed assessment proceedings to continue.

The application to set aside a Default Costs Certificate under CPR 47.8 must be made promptly, typically within 14 days of the certificate’s issue.

The Paying Party must submit Points of Dispute alongside the application, which should:

• Seek a significant reduction in costs claimed.
• Have reasonable prospects of success.

The threshold for a “good reason” is high. Common reasons such as disorganisation or administrative errors are unlikely to succeed. The Court may, however, consider:

• Failure by the receiving party to properly serve the Bill of Costs.
• The Bill of Costs being exceptionally or unreasonably high and it being unjust to allow the amount as claimed.

If the Paying Party has already filed Points of Dispute, the Receiving Party may:

• Apply for an Interim Costs Certificate.
• Reach an agreement with the Paying Party and obtain a Final Costs Certificate for the agreed amount. 

How Can ARC Costs Assist with Compliance with CPR 47.9?

The costs team at ARC Costs are highly experienced in the recovery of legal costs.

We can assist in the enforcement and recovery of costs by drafting Bills of Costs and applying for Default Costs Certificates under CPR 47.9 when the Paying Party has failed to serve their Points of Dispute on time.

We can also assist in the application for Interim/Final Costs Certificates, if required.

As independent experts, we can also assist Paying Parties, either in drafting Points of Dispute, or advising on/assisting with applications to set aside a Default Costs Certificate.

If you require any free initial advice, or our assistance with regards to any aspect of costs, please email us at info@arccosts.co.uk, or contact us via the Contact Us page and one of the team will get in touch on the same working day.  Alternatively, speak to one of the team on 01204 397302.

We can also provide assistance with anything relating to your legal costs claim, whether it be preparing a Costs Budget, to preparing the Bill of Costs and negotiating recovery of your outstanding fees. Simply get in touch to find out more. 

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