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Will late service of replies to points be struck out?

View profile for Nicholas Lee
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Does the Mitchell Judgment have any bearing on filing replies to points of dispute outside of the 21 day time period?

Practitioners should now be well aware that non-compliance with orders and time limits will most likely not be tolerated in the post Mitchell environment and therefore the above question would seem to prompt an affirmative response.  However, the CPR in respect of service of replies to points of dispute some would say is not straightforward.  It is unusual in civil litigation for a strict time limit not to be given for service of documents; however, one such document where the CPR could be considered ambiguous is replies to points of dispute; CPR 47.13 states:

  1. Where any party to the detailed assessment proceedings serves points of dispute, the receiving party may serve a reply on the other parties to the assessment proceedings.
  2. The receiving party may do so within 21 days after being served with the points of dispute to which the reply relates.

The interpretation of the above is that replies are optional and further there is no late sanction for late service of replies and there is no case law on this point. 

Pre 1 April 2013 it was common practice for the 21 day period to be often ignored, indeed, it was not uncommon for paying parties upon serving their compulsory points of dispute to request the receiving party not to immediately serve replies to points of dispute to allow the parties a period of time to negotiate. It was my view, subject to both parties being committed to engaging in meaningful negotiations, this was a pragmatic approach and in the spirit of co-operation and could lead to a swift settlement and ensure that detailed assessment costs were not unnecessarily escalated.  Equally, I am aware of other practitioners who would take a different stance and aver that in accordance with CPR 47.13 the replies should not be served outside the 21 day time period and that early service of replies resulted in a narrowing of the issues and both parties being on equal footing.

The question now arises that, in the post Mitchell era, whether a party might be successful in persuading a court that replies served outside of the 21 day period are non-compliant with CPR 47.13 and therefore cannot be relied upon; it may initially seem fairly irrelevant as to whether the replies are allowed as traditionally on a detailed assessment hearing where the receiving party has decided not to serve replies they were still able to make their oral submissions at the detailed assessment hearing.  However, post 1 April 2013 any assessments where the amount of costs does not exceed £75,000.00 falls under the provisional assessment regime and is assessed on paper only and therefore it is certainly in the receiving parties' interests to serve replies to points of dispute as there will be no opportunity for oral submissions. 

The Senior Court Costs Office Guide 2013 at paragraph 19.5 in respect of the time limits for serving replies to points of dispute states “All these time limits may be extended by the agreement of the parties, or alternatively, by an order made upon an application.”  It would therefore appear prudent that if you are to serve replies outside of the 21 day period you ensure that in the first instance you attempt to agree this with the paying party, the consequences of not doing so may well be the paying party successfully applies for the replies to be struck out with the result that the court will assess your costs based only on the bill of costs and the paying parties' points of dispute which will inevitably result in a result in favour of the paying party. 

Finally, practitioners are reminded of paragraph 41 of the Mitchell judgment: "...the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner.  If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue."