Points of Dispute


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The note on the Ministry of Justice’s website explaining the new amendments to the CPR (this note does not appear to carry any authority itself) states:

“The rules relating to assessment of costs are redrawn to ensure that material presented to the court is relevant to the particular bill of costs and sets out any contentions clearly and concisely. Referral to authorities, quoting of well known judgments and explanations of and responses to individual points of dispute are discouraged.”

If there was one way to guarantee this will not happen what would that be?

The answer is to be found immediately below:

“The process for detailed assessment in which the costs claimed are £75,000 or less is amended. The court will undertake a provisional paper assessment of the bill, and the costs of the assessment will be limited to £1,500.”

If the Ministry of Justice is able to provide a list of the “well known judgments” it has in mind and confirm that all judges who will undertake provisional assessment have passed a test proving they are 100% familiar with the principles established from such judgments I might have rather more faith.

My firm cannot be alone in experiences along the following lines:

1. Despite the District Judge clearly having spent some time reading the relevant guidance in the Green Book in advance of the detailed assessment hearing, it still taking two experienced law costs draftsmen the best part of half-an-hour to explain how the old proportionality test works and what the consequences for the detailed assessment hearing would be if he made a preliminary finding the costs were disproportionate.
2. A judge asking, when referred to the “well known judgment” of Wraith v Sheffield Forgemasters, what the case says on the subject of hourly rates.
3. A Regional Costs Judge not knowing the approach to take following Hollins v Russell to the recoverability of disbursements where there has been a finding that the conditional fee agreement is unenforceable.
4. A case that included a dispute concerning whether the correct documents in support of an additional liability had been served with the bill. The matter listed for half a day. The matter having to be adjourned because the District Judge was struggling to find his way around the Green Book and couldn’t locate the Costs Practice Direction. Upon the matter being relisted the judge continuing to find the matter so taxing that he adjourned the matter again for written submissions. At this stage the parties gave up and compromised the case.

(Feel free to add your own examples.)

Those who believe all judges who will undertake provisional assessment will be fully aware of the rules (both new and old), the relevant transitional provisions and all relevant case law are living on costs cuckoo land.

In the past it might have been sufficient to raise a dispute concerning work done arranging an ATE policy thus:

“Not inter partes. Disallow.”

If the matter went that far, the law could be set out orally at a detailed assessment hearing and the relevant authorities referred to there.

It is now doubtful it is sufficient to say:

“These costs relate to funding. Such costs are irrecoverably as per paragraphs x,y and z of Motto v Trafigura Ltd [2011] EWCA Civ 1150.”

Is a District Judge unfamiliar with the case really going to go away, locate the case and read the relevant sections?

The following is now probably required:

“The Defendant objects to items claimed liaising with the Claimant’s legal expense insurer and refers to paragraphs 108, 114 and 145 of Motto v Trafigura Ltd [2011] EWCA Civ 1150:

“I do not agree with the Judge’s decision on this issue, so far as any costs in establishing and setting … the ATE insurance policy are concerned. …

I have reached the conclusion that the costs incurred by Leigh Day in discussing the progress of the litigation with the ATE insurers, and taking their instructions in that connection, are not recoverable from the defendants. The precise dividing line between recoverability and irrecoverability is, perhaps inevitably, somewhat blurred and subjective. However, as I see it, the cost incurred in having such discussions and taking such instructions was not so much a cost of the litigation as a cost which was collateral to the litigation, being a cost incurred to ensure that the claimants were not at risk on costs.

…Contrary to the Judge’s conclusion, I do not consider that the claimants can recover … any costs incurred in discussing the litigation with, or taking instructions from, with the ATE insurers”

Disallow.”

Of course, this approach may mean some law costs draftsmen and costs lawyers have to go away and read the actual judgment to be able to quote the relevant section. Some may be surprised that the case they have always relied on as authority for a certain proposition is actually no such thing.

Similar considerations are likely to apply when referring to relevant sections of the CPR or corresponding Practice Direction. It may be sensible to quote the actual wording rather than trust the judge to find and read the relevant section, particularly in a year or two’s time where the old rules are relevant but have probably disappeared from the White/Green Book.

The relevant section of the Practice Direction does not actually preclude reference to authority. Rather it states Points of Dispute must be: “must be short and to the point”. That is a rather subjective concept and I rather suspect some District Judges will welcome concise Points of Dispute that nevertheless include sufficient authority for the proposition being put forward.


13 thoughts on “Points of Dispute


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    Anonymous on said:

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    i do look forward to receiving the type of PODs which Simon suggests should now be required – I have the draft Application to strike them out at hand, along with the applications already in hand for assessment of the bill as drawn in view of (many) defendants already ignoring the requirement to set out their offer in an open letter accompanying PODs. Happy days :)


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    Simon Gibbs on said:

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    Can you give us the courts and claim numbers for the cases where you have applications and update us as to your success?


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    Richard on said:

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    Yes that would be really useful :-) Also, anyone applying to apply to strike out non-compliant Replies.


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    Pete B on said:

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    How are people finding the new process on offers? I am invariably getting Part 36 offers that expire after the PODs are due. Are RPs just waiting for PODs before they consider the offer?


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    Chris on said:

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    I am finding that people do not understand Part 36. I constantly see “this part 36 offer is open for a period of 21 days…”.

    Any part 36 offer that imposes a prescribed time limit for acceptance is not a valid Part 36 offer. Part 36s are open for acceptance until such time they are withdrawn in writing. It doesn’t make any difference when PODs are due.

    I am having battles where I make a Part 36 offer and state that I intend to issue part 8s the same day (usually due to rubbish offers). PPs then kick off because I am being so unreasonable. It is only when I explain what Part 36 means that they pipe down. The point is is that if the PP made a decent offer to begin with, there would be no issue.

    If the world worked that way, however, we would all be jobless and there would be no fun.


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    Anonymous on said:

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    Your definiation of fun needs some work


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    Truly Eminent Costs Professional on said:

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    argument=time=money=fun


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    Chris on said:

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    I have spent most of the week watching the snooker world championships… I agree that my idea of fun clearly needs to be addressed!


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    Anonymous on said:

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    Dear, o dear, with all the challenges that LASPO brings and all the doors which have now been opened for further restrictive leglislation in terms of costs recovery, capping, budgeting and conduct of litigation etc.
    I often look on this fantastic website for “light bulbs” but this time I read comments from lots of costs people to-ing and fro-ing about the form and content of documents such as points in dispute and replies etc. I fear that you have all missed the points of the reforms, costs is a dying practice insofar as the current regime is concerned, in 5 years time costs people are likely to have a completely different function and skill set.

    I recently spoke to a costs “manager” at a firm which shall remain nameless, his pleadings had been clearly copied and pasted from a template, his “bill of costs” had clearly been drafted by the office junior (not prepared properly at all), he approached the negotiations in an overly confident and uncompromising manner. To be frank, people like this should be diverted towards doing unpaid work in the community.

    Please all experienced members of the ACL (those who remember the days of scale 1 & 2), any reputable costs firms out there (few left in my humble opinion), think carefully before you begin to bring satelite litigation over nothing. Silly points scoring applications are often fun and novel but in this climate you will do nothing but damage the costs profession as a whole besides I really don’t think the Appeal Courts will have the appetite for any nonsense this time around. This applies to Claimants and Defendants.

    Some stability is now required, there will be some test litigation required to tidy up some issues about the new rules but I cannot help feel that over the last few years certain firms have raised these type of issues simply to raise their personal profile or the profile of their company (and make more money) rather than in the interests of justice.

    Perhaps time will prove me wrong, but if I am right I fear that a relatively small number of costs “bandits” will drive those rusty LASPO nails into the coffin.


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    Anonny on said:

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    Ah the Scale 1 maxima, the good old days.


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    Chris on said:

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    I am going to adopt the use of the phrase “costs bandits” when I next pick up the phone. Fantastic stuff!


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    Tired on said:

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    I agree – the number of firms (a lot of in-house people mainly, with too much time on their hands) trying to score petty points since 01.04.13 is a pretty sad indictment of the market at the moment.


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    Jonathan James on said:

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    “I rather suspect some District Judges will welcome concise Points of Dispute that nevertheless include sufficient authority for the proposition being put forward.” Correct, they will, so do it.

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