How detailed should Points of Dispute be?

I am always rather mystified when I receive Replies that contain a preamble along the following lines:

“Many of the Defendant’s points of dispute do not comply with the costs practice direction as they do not state concisely (or at all in some cases) the nature and grounds of the dispute. The Defendant has chosen, in many cases, to either offer no reason for the proposed reduction or just state that the claim is ‘excessive’.

CPR Part 47.9 CPD 8.2(d) states -

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

They must -

(b) identify specific points, stating concisely the nature and grounds of dispute.

The Claimant submits that where the Defendant has failed to state the nature and
grounds of their dispute then that dispute should be struck out and the item(s) allowed in full.”

If I understand the point being taken, it is being suggested that a Dispute that simply states the number of communications claimed, hourly rate, disbursement, time claimed, etc, is “excessive” without further detail or explanation is non-compliant with the Practice Direction.

Now, it is no doubt possible that where, for example, 10 routine communications are being claimed to obtain a single set of GP records that instead of a dispute reading: “Excessive. Reduce to 3”, this could be elaborated on:

“The Defendant respectively submits that the 10 routine communications claimed to obtain a single set of medical records is unreasonably high and disproportionate and that a competent litigator acting with all due skill and alacrity should have been able to obtain the same without the need to undertake this level of communications. To the extent to which this level of communications has been undertaken, this implies a number of chase-up communications (responsibility for which should not fall on the shoulders of the paying party on an inter partes assessment) or are of a non-fee earner, purely administrative nature. The Defendant submits a reasonable allowance would be 3 routine communications. The Court is reminded that this is a standard basis assessment and by virtue of CPR 44.3(2)(b) when assessing costs the Court will ‘resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party’.”

However, I am not sure that (other than length and cost) this adds anything to the substance of the dispute.

Nevertheless, that may just be my view of the matter. What I really struggle with is the suggestion that the shortened dispute is non-compliant with the Practice Direction, particularly where the receiving party’s Replies themselves expressly make reference to the requirement that Points of Dispute “must follow Precedent G in the Schedule of Costs Precedents annexed to the Practice Direction, so far as practicable”. I can only conclude that those who churn out these kind of Replies have never taken the time to read Precedent G.

Here it is: Precedent G.

And here are some of the example “model” disputes:

  • “Rates claimed for the assistant solicitor and other fee earners are excessive. Reduce to £158 and £116 respectively plus VAT.”
  • “The number of conferences with counsel is excessive and should be reduced to 3 in total (9 hours).”
  • “The claim for timed attendances on claimant (schedule 1) is excessive. Reduce to 4 hours.”
  • “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.”
  • “The time claimed for preparing and checking the bill is excessive. Reduce solicitor’s time to 0.5 hours and reduce the costs draftsman’s time to three hours.”

What is good enough for Precedent G is good enough for me (and the Courts).

15 thoughts on “How detailed should Points of Dispute be?

  1. And then theres the Claimants who moan that the PODs are not short and to the point yet then go on to prepare a reply just as long!!!!

  2. Simon, I myself also receive this pro-forma response from certain sets of Claimant Solicitors. What mystifies me is how I then proceed to read through and note that they have responded to each and every point, generally with such responses as ‘item is reasonable, time maintained’.
    It appears to me that the people preparing these Replies are trying their hand at having the Points struck out, whilst hoping that the Court do not notice that they themselves are not following the relevant Practice Direction, 47, 12.1.
    I am usually met with a short silence when I explain to them on the phone that whilst I consider my Points are fine, their own Replies are non-compliant.
    However, having started my career in a conveyor belt Claimant Solicitors (that is no longer running), I completely understand that the guys doing the work are simply following orders given from management.

  3. ah, cut and paste objections and replies, always a delight

    The truth of the matter is however, most Court’s treat PA’s as boxwork, fitted in around urgent hearings (injunctions, family hearings, repossessions – you know, stuff that really actually matters to real people) and whatever other paperwork is sitting in the backlog. Source? Ask your local DJ’s

    There is no point putting in points of “principle” or lengthy comments, as the Court simply wont read or deal with them in the vast majority of cases

  4. Noting your comment ‘CJ’, in my experience Claimant’s Solicitors respond to every point as we have had occasions were we have left the response blank when there are no concessions to be made and the Judge has assumed we agreed with the Defendants comments.

    Non point. Typical Defendant ‘love-in’. Yawn…

  5. The model PODs might suit a costs court that knows the underlying legal point being made (if there is one), but to the average DJ I suspect they just look like the PP hasn’t put the effort in.

    Might as just well say –

    The PP argues that the costs are disproportionate and excessive. Reduce rates and time spent and then a bit more if the resulting figure is still to high.

    On the other hand, if a DA took place and a PP converted a ‘the costs are excessive argument’ to ‘these items are administrative’ I would be quick to argue that that was not what was pleaded. Whether i’d get anywhere on that is another point, but if the rule of law is being followed the PP ought to be debarred from ambushing with a new point.

  6. in which case @costsperson, you are definitely serving invalid Replies, as you are limited to points of principle and concessions only, as the PD states

    and “Defendant love-in. Yawn…”? Pitiful and disrespectful attitude, your clients must be overjoyed

  7. “you are definitely serving invalid Replies, as you are limited to points of principle and concessions only, as the PD states”

    PD isn’t law though and only a halfwit would advance your argument today. The Overriding objective and common sense trumps it.

    The intention was to avoid pages of “excessive” and “denied”.

    If anyone raises a valid dispute on a general point (let’s say, “you’re not written to us 23 times, we only have 16 letters”) then only the most obtuse and moronic of Judges is going to penalise a Claimant for evidencing each of those communications.

    At the end of the day the whole point was to cut through the bollocks, stop people using Ctrl-C and get to the point. As long as you do that, there won’t be a problem.

  8. Is it just me or do the model PODs fail to tally with new Bill format. Time to update model PODs too ?!?!

  9. @ save the cat

    I wonder, does calling fellow posters halfwits, and the Judiciary obtuse and moronic, serve to add anything to your arguments?

    I have yet to see a Judge ignore a PD post April 13. Reading of a cross section of Appeal Judgement also fortifies PDs enforceability. Perhaps your common sense rule is something you would like to publish. I would be delighted if a Claimant draftsman actually responded to objections with the ‘evidence’ you suggest. None do. One can only guess why

  10. I said anyone who advances that arguments is a halfwit – anyone who is not a halfwit will know why.

    The judiciary are human and some of them are obtuse and moronic. Some are also extremely busy. Some don’t care about costs. Many are fantastic. The latter tend to be the ones who do not get upset when the Replies “breach” the woeful PD.

    “I would be delighted if a Claimant draftsman actually responded to objections with the ‘evidence’ you suggest. None do. ”

    I do. I readily confess that 60%* of the people in costs (on both sides) are not fit to work in an office toilet and this may explain why you see so many weak Replies (and PODS), or turgid Bills or face email-jockeys who could not negotiate a roundabout; but that means 40% are good, and so your argument that “none do” is wrong.

    It really is very simple. Stop point scoring and get to the point; draft a Dispute that makes a point; accept a Reply that deals with said point. Do not cut and paste drivel.

    At the end of the day, the cold reality is that this is all about economics. Sometimes, with the best will in the world, there are just not enough hours in the day to do what you know needs to be done; so you have to do just enough.

    * based on no data whatsoever

  11. Such selective examples. You are quite right Simon 10 routine communications for a set of GP records is excessive and if 3 were offered I would agree that. How about another example I read in every single set of PODs – ‘The 20 routine letters upon the Claimant is excessive reduce to 8′ Whyyyyyyyyyyyyyyyyy????????? (on my kness platoon stylee). The word excessive is used as the paying party has no concise grounds of dispute, how could there be as the Defendant has never had sight of the file. If there is no valid reason to raise an objection it should not be raised at all.

    You are right that Precedent G does use the word ‘excessive’ in the arguments – but this is just an example! It is not based on a real matter, elaborate as you see fit specific to your case…

    If you feel paying parties can rely as gospel the wordings in Precedent G and the use of the reason ‘excessive’, then please tell me where in the Precedent G is there provision to refer to and attach an annotated Schedule of document time whereby each and every item has been challenged.

    How ironic – I remember you taking the point a while ago that my set of replies should be struck out because you asserted that they did not comply with PD 12.1. (essentially you were annoyed that I responded to each and every point and if I do say so myself very well). Thankfully common-sense prevailed with your application being refused. The Judge correctly and simply commented ‘what is the Claimant supposed to do?’.

    Surely the whole idea in raising points/questions is to obtain an answer/reply to help narrow the issues. This matter was heard at DA and my replies and approach was vindicated as your best offer was comfortably beaten with costs awarded to me just shy of £4000.

    You cannot throw a grenade and expect it not to be thrown back.

  12. @ save the cat

    sad that insults are your stock in trade, however, and to cut and paste

    * based on no data whatsoever

  13. As a Defendant, I’m tired of being repeatedly shafted at PA and will now go out of my way to avoid it. Having had team members’ PODs struck out for “non-compliance” (i.e. being too long) it is difficult to gage what is sufficient detail to get the point across without the opponent trying to get them struck out. I don’t make nuisance points, I don’t cut and paste. If something is unreasonable I’ll state my case, yet time and time again I see the Judge simply takes the Claimant’s side throughout all of the preliminary issues, then offers an average amount for the hourly rates and time spent/opposed.

  14. Wow! I’ve been getting the other side of the coin – Defendants who like to provide a long winded narrative in their dispute on the timed items of the PODs. This then prejudices the Claimant as they know full well the Claimant cannot fully respond to these. Why can’t these be included as a Point of Principle of which a reasonable response can be made, instead of sneaking them in somewhere, where no proper response can be made……
    Defendants followed the Precedent G template when it first came in, however slowly we are going back to the old “joint discussion” days, but in paper format!

  15. 01/02/16 – Anon:

    The case of Pipe v Electrothermal Engineering (2014) ought to help you out.

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