Ward v Rai [2025] EWHC 1681 (KB) (03 July 2025) and the Court’s discretion whether to permit non-compliant Points of Dispute.
Background
This matter related to a Road Traffic Accident on 18 September 2019. Liability had been admitted but causation and quantum remained in issue.
The matter concluded on 11 January 2023 when a Part 36 offer in the sum of £546,984 was accepted. Detailed assessment proceedings commenced on 3 August 2023, and the Defendant served Points of Dispute, which included Point 23, which had broadly challenged a sizeable portion of document time without itemisation.
The Claimant responded to Point 23 in their Replies, proposing that this point should be struck out due to the lack of specificity resulting in the point being non-compliant, relying on the decision in Ainsworth. A Detailed Assessment hearing was listed for 5-6 August 2024. On 31 July 2024, just two full business days prior to the hearing, the Defendant served a detailed schedule of objections, which resulted in a lower time figure than had originally been proposed in the Points of Dispute.
During the Detailed Assessment hearing, Deputy Costs Judge Friston declined to strike out or disallow Point 23, resulting on the hearing being adjourned and listed for a third day in November 2024. The further hearing took place on 8 November 2024, where a line-by-line assessment was conducted, resulting in a costs order being made. The Defendant had bettered a part 36 offer made during proceedings, resulting in a split costs order being made, which deprived the Claimant of the costs of the assessment.
The grounds for appeal
Following the Detailed Assessment hearing, the Claimant appealed, which permission was granted on 11 March 2025.
The Claimant raised the following five grounds of appeal:
- The Judge’s refusal to strike out Point 23 failed to give proper effect to the correct interpretation of PD47 Para 8.2(b)
- The Judge misdirected himself in applying a test of whether a broadbrush assessment could be conducted. It was argued that a broad-brush assessment is not suitable for detailed assessment proceedings.
- The Judge was wrong to not give proper effect to CPR 1.3 and the principles from Barton and Woodward. The Court had penalised the Claimant for failing to chase the Defendant, whereas Barton and Woodward states that the parties are to help the court but are not required to help each other.
- The Judge was incorrect to permit the subsequent schedule, as service did not involve an ambush.
- The Judge was incorrect in finding that CPR 47 Para 13.10 provides him with very wide powers.
The Court’s findings
In relation to Ground 1, Mrs Justice Hill considered various pieces of case law to determine whether Point 23 was compliant, including Ainsworth, O’Sullivan, and St Francis. It was considered clear that the Defendant had intended in serving a supporting document schedule to support Point 23. It was considered that the Defendant was of the view that without this schedule, the Point would not be compliant. The Judge considered that Point 23 was not compliant, but did not find this sufficient for the Claimant to succeed on Ground 1. It was found that Deputy Costs Judge Friston had not specifically held that Point 23 was compliant, rather whether any defects could be cured by serving the annotated schedule. It was considered that the judge had discretion whether to strike out the point.
In relation to Ground 2, Mrs Justice Hill disagreed with the Claimant’s submission, as the judge had clearly recognised that it would be inappropriate to conduct the assessment on a broad-brush basis. Deputy Costs judge Friston recognised that the detailed assessment process provides the paying party with a right to descend to a level of detail they want, and the parties can elect to proceed on a line-by-line basis if preferred. It was contested that the judge had considered Point 23 to comply with para 8.2(b) or Ainsworth, rather that the Claimant had been provided with sufficient information to understand the position broadly. As such, Ground 2 was dismissed.
To consider Ground 3, the transcript of the original hearing was considered in order to determine whether the judge was taken to Barton and Woodward during the hearing. It was considered that the argument was only raised after the judgement on appeal. Mrs Justice Hill considered it wrong to criticise a judge for failing to consider a point not raised at the time. Therefore, Ground 3 failed.
Attention was then given to Ground 5, as it was considered that Ground 5 was more general, whereas ground 4 is a more fact-specific argument.
Consideration was given to various cases where judges has exercised their discretion to disallow Points of Dispute filed prior to a hearing. Edinburgh v Fieldfisher disallowed Points of Dispute less than 3 working days before the hearing. Celtic Bioenergy v Knowles disallowed Points of Dispute served 1 month before the hearing. However, Mrs Justice Hill did not find these cases to be in support of the Claimant’s position. It was considered that the discretion was to prevent the other side from being ambushed, but no guidance is given to the court as to how to exercise these powers, other than justly and at proportionate cost. It was considered that the judge’s statements were accurate, and comparable to the words used in Celtic, as the Court was found to have a wide discretion. The Claimant was unsuccessful on this element of Ground 5, but would consider the second element of Ground 5, namely whether the judge misapplied CPR 13.10(2), later.
The final ground, ground 4, was subsequently considered. It was raised that as the schedule was served late and were fundamentally different to the Points of Dispute, this prevented the Claimant from being able to anticipate the arguments raised and advanced various new arguments. The Defendant also had been on notice of the objection and reliance on Ainsworth since January 2024, so to serve around 2 days before the hearing was the definition of an ambush. However, Mrs Justice Hill disagreed. It was considered that the Claimant were aware of the schedule due to the mention in the original Point 23 and the Claimant is partially responsible for failing to chase for the schedule. Similarities were found with Ground 3, resulting in Ground 4 also being dismissed.
Did the Judge fail to give proper effect to CPR PD 47 para 8.2(b) and 13.10(2)?
Despite the 5 appeal grounds largely failing, consideration was given to whether the approach taken by the judge was incorrect when applying CPR PD 47 8.2(b) and 13.10(2). In Edinburgh and Celtic, it was clear that paragraph 13.10(2) should be exercised to further the overriding objective. Consideration was given to the fact that the issue with Point 23 resulted in the hearing being listed for a further day. The judge rejected the Defendant’s submissions that the third day would have been necessary in any event, and attributed this to the issues with Point 23.
Mrs Justice Hill considered the breach of the Defendant to be egregious than in Ainsworth, as they had waited until 2 days before the hearing to remedy the issue with Point 23. Challenges were faced with how the previous judge had considered paragraph 8.2 (b) and Ainsworth. It could not be found that permitting the schedule allowed the claim to proceed justly and at proportionate cost. The requirement of a further day increased costs significantly. While it was considered that striking out the schedule would be unfair to the Defendant, it was acknowledged that this was entirely of the Defendant’s own doing.
As such, Mrs Justice Hill concluded that the aspects of grounds 1 and 5 that related to the weight that Deputy Costs Judge Friston gave to paragraphs 8.2(b), 13.10(2), and Ainsworth succeeded. The appeal was subsequently allowed.
Analysis
This matter only highlights the issue to comply with the strict requirements of Points of Dispute. The purpose of Points of Dispute are to enable the parties and the Court to determine exactly what is in dispute and the standard the receiving party is to meet to discharge that burden. Failing to meet these requirements can have significant consequences, including the points being struck out.
It also highlights the considerations given to a potential ambush prior to a hearing. As demonstrated here, there are various mechanisms in place to grant the Court the discretion to strike out any document served near the hearing without good reason. The most powerful one being the fact that an ambush is likely to increase costs significantly, which will likely run against the grain of the overriding objective.
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