Replies to Points of Dispute

Yesterday’s post on the content of replies under the new rules generated plenty of interest in the Comments Section and I therefore thought it appropriate to elaborate on this issue.

In response to the fact the new rules state replies should be limited to points of principle and concessions only one reader commented:

“An item being a matter of principle is surely a matter of interpretation. One mans principle is another mans minor issue”

Another commented:

“Each of those points in the model pods has a space for a reply, including those that are not under the heading ‘points of principle.’ The only change is that you cannot simply say ‘maintained.’”

To start with we need to go to the new Practice Direction 8.2 to CPR 47.9:

“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:

(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.

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.”

So, it is clear that “general points or matter of principle” are limited to those that “require decision before the individual items in the bill are addressed”. As such, this is generally not going to be a matter of interpretation. Disputes raised as to the reasonableness of a conference with counsel, or disputes as to document time, or disputes as to the reasonableness of a brief fee are not “matters of principle which require decision before the individual items in the bill are addressed”. They are disputes to individual items within the bill.

The new Practice Direction 12.1 to CPR 47.13 states:

“A reply served by the receiving party under Rule 47.13 must be limited to points of principle and concessions only. It must not contain general denials, specific denials or standard form responses.”

Therefore, if a dispute is raised to any of the examples given above the box for the “Receiving Party’s Reply” should either contain a concession or be left blank.

The Practice Direction does not contain any guidance as to the distinction between a “general point” and a “point of principle”. The only assistance we have is the two examples contained within the Model Points of Dispute. This gives an example of a “point of principle” 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 would therefore suggest examples of other points of principle would include:

  • A challenge to the indemnity principle.
  • A challenge to the enforceability of a CFA.
  • An argument that proceedings were issued prematurely and the costs should be limited to fixed predicable costs.

Those are matters to which a reply is permitted.

The example given of a “general point” is:

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

No reply is permitted, other than a concession.

I would suggest another example would be that the costs were disproportionate. Others might say this is a point of principle. Having said that, the new proportionality test is meant to be applied at the end of the assessment, rather than the beginning, in which case it is neither a general point nor a point of principle.

Interesting issues arise. Are any of the following general points or points of principle:

  • An argument defective notice was given of an additional liability.
  • An argument as to the level of success fee claimed.
  • An argument VAT has not been properly apportioned.

Do any of these issues need to be decided at the outset? If not, no reply is allowed, other than a concession.

I can see many receiving parties bursting if they cannot reply to these disputes.

One reader suggested that if the Points of Dispute were drafted before 1 April 2013 then surely Replies should follow the old format and are not limited to the new Practice Direction. I can see no transitional provision that deals with this. Therefore any Replies served after 1 April 2013 are subject to the new, mandatory, provisions.

Another reader asked if I would apply to have struck out non-compliant replies and another noted there is no sanction for non-compliance. In the first instance I am simply pointing out where replies are non-complaint and therefore saying they must not be lodged with the court when requesting any hearing. Applications will no doubt have to be considered if the other side does not agree. The courts will be keen to ensure the new rules are made to work (so far as possible) and it would entirely defeat the purpose of these changes if receiving parties were allowed to simply ignore the changes. In any event, the costs of non-compliant replies will inevitably be disallowed.

10 thoughts on “Replies to Points of Dispute

  1. In terms of predictable arguments such as rates, proportionality, success fee and so on, I suspect the preamble to the bill of costs will start to cover these sort of issues pre-emptively.

    I do wonder whether a challenge to compliance with the requirements of a point of dispute (e.g. This point of dispute fails to identify the grounds for the dispute) will be a point of principle.

  2. It will be interesting to see the approach of provisional assessment with the new procedure.

    Generally points of principle will net the greatest reduction which I assume is the reason for the permitted response.

    However, which way is the the assessing judge likely to go where there is a dispute and no permitted response?

    I guess a lot will depend upon the time available i.e. will there be time to investigate the point or accept/reject it out of hand? The value of the item in dispute is likely to have a bearing on any such decision.

    The message to receiving parties: Claim what is reasonable and try to settle if the provisional assessment is listed on a Friday afternoon.

    The message to paying parties: More focus, make your disputes count and make a reasonable offer.

  3. RP – make a good Part 36 from the outset and focus paying parties minds! happy days

  4. Where do i find the Part 47 PD and precedents. I cant find them on the court website!!!

  5. Have the court included PD 47 on website yet. Cant find it or the costs precedents. Have they updated the site to include PD 47!!

  6. Surely it is unfair to disallow the cost of non compliant replies to points of dispute which are also non compliant.

    I note the very literal approach taken, but surely common sense would suggest that you can’t have two documents which have been drafted under two sets of rules.

    If lengthy standard submissions are made within Points of Dispute under the old PD, not in the format of Precedent G, then there must be an argument that full Points of Reply would be appropriate.

  7. @ anon 9.08am Agreed! theres FAR too much nonsense on here lately about minutia which frankly shouldnt even be in the forum, IF people would simply just act sensibly rather than taking stances – have the majority not learned yet, it was that attitude on stances that caused these reforms, and may still rob you of a living in this profession unless you embrace the change and act sensibly

  8. All well and good, but what’s the sanction? Come to think of it what’s the sanction for the PODS not being “short and to the point” in accordance with the Practice Direction?

    Short and to the point was required by the old rules (CPR 47.9 PD 35.2) albeit it was not mandatory.

    However, there were other mandatory rules, for example, suggesting a figure to be allowed for each item unless it was impractical to do so. (See CPR 47.9 PD 35.3 (3)).

    I’ve seen plenty of PODS where figures were not suggested but never remember anyone being sanctioned for it.

    Unless the Court is going to take a more robust view, absent a clear sanction, I suspect PODS and Replies will carry on like before.

    Those representing parties have a conflict here. On the one hand, do the best by their client which means disputing or defending costs to best of their ability (in particular where they are unlikely to have an oral hearing and the Court won’t see the file of papers) and on the other comply with a practice direction with no clear sanction.

    I think most will opt for doing the best by their clients and will plead their case in detail.

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