Precedent G – Decision to Reject Points of Dispute Upheld 

 

Edinburgh v Fieldfisher LLP [2020] Costs LR 549

The High Court recently upheld a decision made by a Costs Judge to reject a Claimant’s supplementary Points of Dispute (Precedent G). In the case of Edinburgh V Fieldfisher LLP, the supplementary Points of Dispute were refused as they were disclosed to the Defendant 90 minutes before a detailed assessment hearing.

 

What are Precedent G Points of Dispute?

Points of Dispute (Precedent G) are formal arguments which are served by the paying party upon the receiving party in response to a Bill of Costs. For example, it could be contended that a disproportionate amount of document time has been claimed for, or an excessive hourly rate is being charged. It could also be argued that unnecessary communications have occurred between the fee earners within the case and duplication of actions has taken place.

Your Precedent G points must be short and to the point. They should identify specific points of principle that state concisely the nature and grounds of the dispute. This ensures that the arguments cannot be dismissed as overly general points on provisional assessment or detailed assessment.

Schedule of costs precedents annexed to CPR 47 can be found here

 

What Happened in Edinburgh v Fieldfisher LLP?

Proceedings arose between Mr Edinburgh and Fieldfisher LLP due to a dispute regarding the level of fees charged by Fieldfisher LLP to their client, Mr Edinburgh.

Before Mr Edinburgh’s dealings with Fieldfisher LLP, he invested in a tax savings scheme which had been recommended by Greystone Financial Services. This investment led to Mr Edinburgh being investigated by HMRC, arrested and tried for tax evasion. Fortunately, Mr Edinburgh was acquitted of these crimes, although he lost hundreds of thousands of pounds in legal fees.

Mr Edinburgh’s first communications with Fieldfisher LLP occurred shortly after this, as he instructed the Solicitors with a view to a possible claim against Greystone Financial Services. However, Edinburgh terminated the retainer with Fieldfisher LLP and continued the claim against Greystone Financial Services as a Litigant in Person.

From the work that they had completed for Edinburgh, Fieldfisher LLP rendered four invoices which totalled £84,247.35. As Mr Edinburgh did not agree with the amounts charged on the invoices, he applied for assessment of them.

A directions hearing was listed for the matter and took place on 29 January 2019. At the hearing, Master James stated that there would be no assessment upon the December 2017 invoice however, that the other three invoices would be assessed. Therefore, Mr Edinburgh was ordered to pay £44,000 in respect of the invoices on/before the 14 June 2019.

Alongside Edinburgh’s Order, Fieldfisher was instructed to serve a Bill of Costs containing a breakdown of the three invoices subject to assessment, on or before 12 July 2019. Following the service of Fieldfisher’s Bill of Costs, Mr Edinburgh was ordered to provide any Points of Dispute on that bill, on or before 8 August 2019. He also required a reply from Fieldfisher on or before 29 August 2019. Mr Edinburgh made the ordered payment and Fieldfisher sent the Bill of Costs that they had produced to Crofts, Mr Edinburgh’s new Solicitors.

As mentioned above, Mr Edinburgh had to serve their Precedent G by 8 August 2019. On 7 August 2019, a day before the deadline, Crofts sent an email to Fieldfisher expressing that they did not deem the email service of the Bill of Costs to be acceptable. Following this complaint, they served two Points of Dispute; the first one on the aforementioned issue, and the second  outlined a request that Mr Edinburgh reserved the right to question every item on the Bill of Costs. The second dispute was considered unacceptable by the Court due to its lack of specificity being in lack of compliance with CPR 47. Fieldfisher then applied for a confirmatory order which was granted by Master James on 5 September 2019. Master James disagreed with Edinburgh and decided that the email service of the Bill of Costs was in fact valid.

On 27 September 2019, Fieldfisher indicated that they required an assessment of the three remaining invoices. No response was received from Mr Edinburgh by 11 October 2019 and thus Fieldfisher therefore made an application for detailed assessment. The detailed assessment hearing date was set for 2 December 2019.

Two days prior to the detailed assessment hearing, an application was made on Mr Edinburgh’s behalf for permission to serve supplementary Points of Dispute.

The Points of Dispute were served 90 minutes before the hearing began.

Master James decided not to allow any amendments to the Points of Dispute, finding the factors that lead to Mr Edinburgh’s late service unacceptable.

Ultimately, it was decided that an appeal against Master James’ case management decision disallowing Mr Edinburgh’s Points of Dispute would have no real prospect of success, so the permission to appeal was refused.

 

Why Was Permission to Appeal Refused?

It was made known to the Court that Mr Edinburgh had suffered traumatic events in the months leading up to the detailed assessment hearing. However, in the three weeks before the hearing, he would have been capable of serving Points of Dispute.

The Points of Dispute that were raised by Crofts Solicitors in August 2019 were deemed to be illegitimate, as they gave no indication of the grounds on which the amounts in the invoices were being disputed.

Chamberlain J, the Judge on this case, concluded that if the Points of Dispute had been disallowed, Mr Edinburgh may have secured a substantial reduction on the Bill. Nevertheless, this did not outweigh Mr Edinburgh’s tardiness.

 

What Can we Learn from this Case?

From Edinburgh v Fieldfisher LLP we can recognise the importance of delivering Points of Dispute within the allocated time, as Edinburgh’s tardiness in this case was detrimental to his success.  If a Court deadline has ever passed, we would strongly recommend that an application for relief from sanctions is made as soon as is practicable.

 

How can ARC Costs Assist?

At ARC Costs, our expert team of Costs Lawyers, Costs Draftsmen and Costs Negotiators can help to prepare the Precedent G Points of Dispute and can aid in contesting and producing Bills of Costs. Therefore, it is immaterial as to whether you are the paying party or the receiving party, as we can assist either.

To ensure that you never face the issues that were detailed in the Edinburgh v Fieldfisher LLP case, we recommend you instruct us as soon as the Notice of Commencement is received, and we can ensure that your Points of Dispute will be prepared within 7 days of instruction.

The ideal combination of our advice on reasonable settlement brackets and provision of additional negotiation assistance, guarantees that we will achieve the best possible outcome for you.

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