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One of the superficially innocuous forthcoming changes to the Costs Practice Direction relates to the contents of Replies. Replies are currently, of course, optional and one therefore might have expected these only to be drafted in cases, and in relation to specific disputes, where it might usefully narrow the issues or where positive concessions are being offered. Not in this writer’s experience.
CPD 39 will now read:
“39.1 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.
39.2 Whenever practicable, the reply must be set out in the form of Precedent G.”
Sharp intake of breath from a large number of law costs draftsmen and costs lawyers. This particular gravy train is coming to a crashing halt.
The example of a point of principle given in the new Precedent G is: “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.”
A challenge to whether a matter required a Grade A fee earner or whether it was reasonable to instruct non-local solicitors is not a point of principle. No reply needed or allowed (note the use of the word “must” in CPD 39.1). A challenge to the number of hours spent in attendances on the claimant is not a point of principle. A challenge to a conference with counsel is not a point of principle. A challenge to the level of success fee is not, under ordinary circumstances, a point of principle (not that we’ll have those shortly). With the changes (clarification) of how points of dispute should look, we’ll no longer have item-by-item challenges to document schedules. Even if we did, this is not a point of principle and no reply allowed.
There are no doubt plenty of law costs draftsmen and costs lawyers who make almost as much money drafting prolix replies as they do from anything else they do. I currently have a case where I drafted points of dispute running to 8 pages. In response I received replies running to 34 pages which resembled a skeleton argument, but did nothing to narrow the issues. Those days are about to end.
In fact, there is now no justification to continue the current abuse of the system until the rule change formally comes into force. Next time, as a receiving party, you receive points of dispute, pause and reflect. Unless there is a point of principle or you are making a concession, no need for replies. That is why they are optional.
In future, most points of dispute will not justify replies. Where replies are justified they are likely to be limited to a few narrow points and it will be rare for more than 30 minutes to be required on the task.
I look forward to making my first application to have replies struck for failing to comply with CPD 39.1.