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The Association of Costs Lawyers recently set up a working party, which I was roped into, on the new(ish) provisional assessment process.
One of the problems identified (although this is not strictly a problem limited to provisional assessment) is the timing and content of 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.”
What are the consequences of serving outside 21 days?
As to content, PD 47 para.12.1 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.”
Other than the very limited examples given in Precedent G, what does this allow and not allow?
The decision in Pipe v Electrothermal Engineering Ltd (SCCO, 2014) from Costs Judge Master Rowley gives some guidance on the issue. At the risk of doing a serious injustice to a very carefully considered, reserved, judgment, it might be summarised as: serve what you like when you like and the only adverse consequence is likely to be in costs.
Of course, this is not a binding decision (even on Master Rowley) and I have had different results before other judges. The Regional Costs Judge in Manchester struck out Replies that had been served late and without permission and ruled that if the receiving party wished to rely on the same they would need to make a formal application for permission to serve late. The Senior Costs Judge Master Gordon-Saker disallowed late Replies where the application for permission to rely on the same was made orally at a detailed assessment hearing, as there was no good reason for late service. He did observe that the argument was really about the costs of the late Replies, as opposed to the admissibility of the same. Replies are optional and the receiving party could simply recite orally the contents of the Replies even if permission for late service was refused. Nevertheless, the consequence was that the costs of drafting the Replies would not be recoverable and the outcome for the receiving party might have been different if the matter was proceeding to provisional assessment (where there would have been no opportunity to make oral submissions).
In any event, this is a helpful judgment and sets out the competing arguments.