New Points of Dispute format


Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

The upcoming changes to the Costs Practice Direction include amendments to the rules concerning Points of Dispute.

The current CPD 35.2 reads:

“Points of dispute should be short and to the point and should follow as closely as possible Precedent G of the Schedule of Costs Precedents annexed to this Practice Direction.”

This is to be replaced by:

“Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to this Practice Direction, so far as practicable. They must:

(1) identify any general points or matters of principle which require decision before the individual items in the bill are addressed, and

(2) identify specific points, stating concisely the nature and grounds of dispute. Once a point has been made it should not be repeated but the item numbers where the point arises should be inserted in the left hand box as shown in Precedent G.”

You will note the use of the word “must” in place of “should”. There is now no scope for arguing over the point.

I still receive, on a virtually daily basis, claimants’ Replies arguing that a dispute that simply says: “Hourly rate excessive, reduce to £150” or “Time claimed on documents excessive, reduce to 50 hours” is defective as failing to give sufficient reason for pleading a reduction. These are clearly written by law costs draftsmen or costs lawyers who have never bothered to read the current Precedent G (click to view). We will now have a new Precedent G (click to view) which “must” be followed. Consider the following examples taken from it:

“Point 1 – General point – Rates claimed for the assistant solicitor and other fee earners are excessive. Reduce to £158 and £116 respectively plus VAT.”

“Point 2 – Point of principle – The claimant was at the time a child/protected person/insolvent and did not have the capacity to authorise the solicitors to bring these proceedings.”

“Point 5 – (47) – The total claim for work done on documents by the assistant solicitor is excessive. A reasonable allowance in respect of documents concerning court and counsel is 8 hours, for documents concerning witnesses and the expert witness 6.5 hours, for work done on arithmetic 2.25 hours and for other documents 5.5 hours. Reduce to 22.25 hours.”

Note the absence of references to case law, the absence of lengthy (any?) justification for the reductions proposed and the total lack of a line-by-line challenge to the document time. Failure to comply with Precedent G is likely to lead to costs sanctions. At best, the time that will be allowed for drafting Points of Dispute will be reduced to the time that should have been spent on the task to comply with Precedent G.

None of this is meant to be particularly revolutionary. This is how it was always meant to be done and what costs judges in the Senior Courts Costs Office have been clamouring for over the years. The problem has been that the costs profession has ignored the existing guidance.  This should no longer be possible (if judges do their jobs properly).

Although these “new” rules will not be retrospective, given we now know what is to be expected (and this is no more than what the current Precedent G requires), law costs draftsmen and costs lawyers would be well advised to start following this guidance immediately.

Note the reference to: “Once a point has been made it should not be repeated but the item numbers where the point arises should be inserted in the left hand box as shown in Precedent G”. This is why every individual item on a bill should be numbered. Those who draft bills and those who produce bill drafting software, please note. It’s no good giving all the profit costs a single item number.

The one area where I have concerns is how this links in with the roll out of provisional assessments. Fine if you had regional costs centres (the one failure of Jackson in failing to recommend this) or if everything was listed before a regional costs judge. However, if a district judge is expected to conduct a provisional assessment on paper in one hour faced with such Points of Dispute, are they really all capable of dealing with a dispute as brief as “The claimant was at the time a child/protected person/insolvent and did not have the capacity to authorise the solicitors to bring these proceedings”?

I can’t be alone in having attended a detailed assessment hearing where there is a Wraith v Sheffield Forgemasters Ltd dispute only to discover the judge is unaware of the case or what is it authority for. Will they be expected to research the law without being referred to any case law?  Will they go away and locate copies of judgments if referred to the case law (all in one hour)?  How is one expected to plead this kind of point with no knowledge of the level of costs knowledge the judge will possess? It is often a mistake to assume a judge on assessment has any costs knowledge.

Oh, and some of you might have realised that complying with these rules will be less labour intensive and reduce the fees that can be properly charged.


16 thoughts on “New Points of Dispute format


  1. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Kevin Hassey on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    What about the provision for making offers and refering to them in the Points of Dispute or in an open letter accompanying the Points but no need for the same in any replies.


  2. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Ian Cosgrove on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    Simon, be careful for what you wish for ! I had an Assessment in the provinces last week against Cost Counsel. My PODS followed precedent G in respect of Documents. Counsel complained about the lack of particlar challenges and said that both he and his Instructing Solicitors had therefore been forced to prepare for the hearing on the basis that every item was under attack. Our offer came up short and both Counsel and the Solicitors were then allowed substantially more Costs of the Assessment than would have been the case had I challenged the documents time in the conventional way. A classic case of false economy.


  3. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Pete B on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    I had a similar problem in Bedford only two weeks ago Ian. I was criticised by both opposing Counsel and the Judge for essentially following Precedent G in terms of the document time challenges. My opponent got almost 20 hours for Defending a 12 month credit hire claim and needless to say my offer was not sufficient. That will certainly be the last time I follow the precedents.


  4. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Jacques Hughes on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    The PD does not forbid reference to authority. But as SG says, you can hardly expect the judge to go and read a case, even if you do name it. So what do you do? It would I think be sensible for PoD to refer the judge to the relevant note in the White Book (sorry to those c/d who don’t get it, but it is the only book you can be sure that a DJ will have. You can get vol 1 as a stand alone now for less than £400, and obviously that’s a tax deductible expense). All the main cases like Wraith are summarised there. Someone told me that all DJs were given free copies of Friston. If that’s true, I suppose you could cite that instead.

    As to “The claimant was at the time a child/protected person/insolvent and did not have the capacity to authorise the solicitors to bring these proceedings.” Whoa cowboy! If want to challenge a solicitor’s authorisation to bring proceedings, you must do so at the outset. Even trial is too late, let alone d/a proceedings. See Russian Commercial & Industrial Bank v Comptoir d’Escompte de Mulhouse [1925] AC 112.


  5. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    annon on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    Im hoping that that was a badly phrased capacity argument by whoever drafted the precedent


  6. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Anonymous on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    Odd really re the current precedent as paragraph 5.2(b) of the SCCO guide to assessment states;

    “As a general rule, where details of an item are given in a schedule to the bill (eg, the Documents Item) it is not necessary for the Points of Dispute to deal separately with each individual entry in that schedule.”


  7. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Simon Gibbs on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    Jacques,

    Nice tip re referencing the White Book (or Friston). I think I’ll take that up.


  8. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Northern Monkey on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    So, instead of claimant’s putting a gun to your head by saying ‘if you don’t like it just serve your points of dispute’ defendant’s can now fire a quick, easy bullet first?


  9. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Magnum PI on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    So, I’ll have to credit Mr Friston rather than shamelessly plagiarising his work?

    I have no problem with concise objections, as long as they are exactly that. Short but clear as to what the argument actually is.


  10. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Anonymous on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    What do people think about this for example: “excessive, allow x letters”

    I know they say keep it brief but a 1 word argument?! Too brief or adequate?


  11. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Andy Ellis on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    I reckon PODs should just use brief comments like “meh” or “shut up”


  12. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Northern Monkey on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    I’m planning on just putting in a point of principle saying “this is too much we ain’t paying that”


  13. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Acceptthis1 on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    On 1st Feb Anonymous referred to para 5.2(b) of the SCCO guide incorrectly…the first line actually says ‘The points of dispute should identify each item in the bill of costs which is disputed’. It can’t be any clearer that disputed items need identifying.


  14. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Simon Gibbs on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    This is the full text of 5.2(b):

    “The points of dispute should identify each item in the bill of costs which is disputed; state concisely the nature and grounds of the dispute and, where practicable, suggest a figure to be allowed instead of the figure which has been claimed. As a general rule, where details of an item are given in a schedule to the bill (eg, the Documents Item) it is not necessary for the Points of Dispute to deal separately with each individual entry in that schedule.”

    Seems clear enough. You don’t need to deal entry-by-entry with document schedules.


  15. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Anon on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    The PD for Part 47 is currently missing from the online CPR – presumably to amend for the 62nd update at the end of the month?

    I sympathise with the court that PODs can be unnecessarily long and pointless – I particularly like the ones that identify all the items which are not in dispute as well as those that are – surely the clue is in the name? and the ones that take 3 pages to say what could be said in 1 sentence.

    That was the point (in part) of oral hearings – to give the parties an opportunity to expand on the brief Points of Dispute prepared – which is precisely why they only needed to be brief in the first place.

    However, we no longer have oral hearings and like Simon, we should all share concerns about what will happen in a provisional assessment, with the range of Judges who carry out such exercises.

    For example, what will happen if your only dispute is ‘excessive’ and the Judge thinks the costs at first blush are reasonable? Will they look closer in the time allotted to them?


  16. Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524
    Antony on said:

    Warning: Use of undefined constant user_level - assumed 'user_level' (this will throw an Error in a future version of PHP) in /homepages/25/d110586513/htdocs/gwslaw/wp-content/plugins/ultimate-google-analytics/ultimate_ga.php on line 524

    The client is King, I would much rather make a point properly than risk it being missed on assessment and suffer the wrath of my client. Surely the key is making sure that you assess each case individually and you make points as concise as is possible, if you need to expand on a point then you do so.

Leave a Reply

Your email address will not be published.

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>