Beware a broad brush approach to costs assessment

Court of Appeal dismisses former client's objection to solicitors' invoices on assessment.

Solicitor and own client assessments are on the rise, with some firms now specifically advertising for this work. This trend is generating case law, such as Ainsworth v Stewarts Law [2020] EWCA Civ 178 (link to judgment here), which provides guidance on the format that Points of Dispute should take not only for solicitor and own client assessments, but also for inter party assessments. Ultimately, the Points of Dispute should be short and to the point and should enable the respondent to determine precisely which items are in dispute and why.

Background

Further to the breakdown of his relationship with his former partner, Mr Ainsworth became embroiled in a particularly acrimonious dispute, which he instructed Stewarts Law (SL) to handle. Throughout the course of the retainer, invoices were provided to Mr Ainsworth, up to the termination of the retainer by him because he was dissatisfied with the service provided. Mr Ainsworth disputed the sums invoiced and applied for an assessment of SL's fees, contained within three invoices, pursuant to part III of the Solicitors Act 1974.

SL served a breakdown of its costs. Mr Ainsworth instructed a costs draftsman, Mr Poole, who inspected SL's files and served Points of Dispute. The focus of the appeal was on work done on documents within a 10-day period, which was set out in a Schedule with items numbered 40 to 45. Point 10 of Mr Ainsworth's Points of Dispute summarised the main issues with those items as follows:

1. Significant duplication between fee earners;
2. Wholly excessive time expended by fee earners reviewing documentation provided by the Claimant;
3. Too much time claimed generally in relation to preparation;
4. An excessive level of time claimed in relation to drafting of communications;
5. Unnecessary inter-fee earner discussions arising due to duplication;
6. Excessive time spent collating documentation; and
7. Significant preparation time claimed in relation to meetings with the Claimant.

In response, SL's Points of Reply said, in relation to each of items 40-45:

"The defendant cannot provide any meaningful reply to this general point. In the absence of itemised Points of Dispute being served… the Court will be asked to dismiss this point." Perhaps rather oddly, given that Mr Ainsworth was represented by a costs draftsman, nothing further was served on his behalf in relation to items 40-45.

The assessment hearing

The matter was heard before senior costs judge Chief Master Gordon-Saker, who dealt with Mr Ainsworth's Points of Dispute without issue, until he came to point 10. He rejected the approach proposed by Mr Poole that he "run through some of the entries in relation to the schedule… and sort of consider some of those entries and then form a view as to the costs as a whole", which he described as "broad brush". This, he said, was inappropriate and put both the defendant and the court in a difficult position because it would not mean looking at every individual item, but only particular items, "and presently, apart from Mr Poole, none of us knows which items those are going to be."

The Chief Master went on to say that the failure of the Points of Dispute to set out which items were challenged and why meant that SL would have had to review its file in order to ascertain what work was done, why and in what context in relation to each item, in order to explain why it was reasonable. This would have been disproportionate. The Chief Master said, "the purpose of points of dispute is really to prevent that work being done on the hoof in the course of a hearing. The solicitors are entitled to know specifically which items are challenged and the reasons for the challenge… It seems to me that the points of dispute do not raise a proper challenge to the documents items and certainly do not raise a challenge which can be properly answered by the defendant without a considerable amount of time being spent on looking at the papers to reply to that challenge…"

Mr Ainsworth appealed the Chief Master's decision to dismiss point 10, on the following grounds:

• That it was a breach of his rights under section 70 of the Solicitors Act 1974, and that he was entitled to be heard; and
• That point 10 contained more detail than is required by CPR 47 and Precedent G of the Schedule of Costs Precedent.

The first appeal

The appeal was heard by His Honour Judge Klein sitting as a High Court Judge in the Chancery Division, who upheld Chief Master Gordon-Saker's decision.

Whilst he said that the Chief Master's decision might have been "illegitimate in the sense of not furthering the overriding objective…" this would only have been the case "if that [decision] was not a proportionate response to the claimant's failure himself to further the overriding objective." In explaining why the decision was not illegitimate, the judge gave seven reasons, which included: a) that Mr Ainsworth knew from SL's Points of Reply, that it could not properly respond to the Points of Dispute on work done in relation to items 40-45; b) Mr Ainsworth had the right to amend the Points of Dispute and give further particulars of his objections, but did not do so; and c) Mr Poole had clearly appreciated, at the hearing, that the Points of Dispute did not particularise Mr Ainsworth's complaints about the individual items.

The Court of Appeal's decision

Mr Ainsworth appealed to the Court of Appeal. That Court considered it clear that, "although CPR 46.9 and CPR 46.10 apply in relation to solicitor and own client assessments, it is necessary to look at CPR Part 47 for assistance in relation to the form which Points of Dispute should take." Accordingly, paragraph 8.2 of PD47 is directly relevant. It says:

8.2 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.

Further, the Court said, "common sense dictates that the points of dispute must be drafted in a way which enables the parties and the court to determine precisely what is in dispute and why… It is necessary in order to enable the receiving party, the solicitor in this case, to be able to reply to the complaints. It is also necessary in order to enable the court to deal with the issues raised in a manner which is fair, just and reasonable."

The Court gave the following guidance in the case of a solicitor and own client assessment: "that, in order to specify the nature and grounds of the dispute, it is necessary… to specify the specific items in the bill… and make clear in each case why the item is disputed… Having explained the nature and grounds of dispute succinctly, the draftsman should insert the numbers of the items disputed on that ground in the relevant box." Further, the Court held that Points of Dispute in a solicitor and own client assessment should adopt the format of Precedent G "to the extent practicable". It said that Precedent G provides the form to be adopted, the content having been explained at paragraph 8.2 of PD47.

The decision

The Court of Appeal held that point 10 of Mr Ainsworth's Points of Dispute neither complied with paragraph 8.2 of PD47 nor took the form of Precedent G. Mr Poole's proposed broad brush approach was inappropriate (for the reasons set out above). Mr Ainsworth had had five months' notice that the point would be taken by SL and he was entitled to amend his Points of Dispute, but did not do so. Chief Master Gordon-Saker had been right to find that point 10, as pleaded, could not be fairly heard "on the hoof" or proportionately. Fundamentally, SL was unable to identify which items were challenged and why, a finding which had been accepted previously by Mr Poole. 

Thus, the Court of Appeal unanimously decided that the Chief Master was entitled to form the judgment that he did and to dismiss the assessment in relation to point 10. This, it said, fell within the wide ambit of the court's discretion under its case management powers, pursuant to CPR 3.4(2)(b) and/or (c).

Commentary

This decision will be relevant not only to professionals practising in solicitor and client disputes, but also to any case that goes to detailed assessment. 

As well as reinforcing the relevant rules regarding the format that Points of Dispute should take, this case provides some useful guidance for solicitors generally when considering the wording of time narratives, which will inevitably appear on the client's bill. Often, work done on documents will comprise a large portion of the work done on a client file and individual tasks are likely to encompass the issues summarised in Mr Ainsworth's Points of Dispute. Most (if not all) of these tasks will be necessary to progress the matter in accordance with the client's instructions – yet it may end up being those same tasks that cause the client to object later on. This case is a helpful reminder for practitioners to ensure that they give clear narratives to enable the client to understand the work done and what has been charged for; this should limit the time needed to investigate in the event of a challenge to the bill. Practitioners may prefer to go a step further and include a lengthier, more detailed note in their narratives in order to reduce the likelihood of a misunderstanding or complaint.

The judgment makes clear that Points of Dispute should be "short and to the point" and that they must "identify specific points, stating concisely the nature and grounds of dispute." Those instructed to prepare Points of Dispute should take care not to give generic reasons or to lump items together, in order to avoid the risk that those points will be dismissed by the costs judge. Similarly, those responding to the Points of Dispute should be mindful of this and consider whether to object and/or respond on that basis. As this judgment suggests, where the receiving party has challenged the Points of Dispute and/or alleged that further detail is required, it will be very risky for the claimant not to amend the Points of Dispute or serve further particulars.

However, the judgment may cause some confusion for practitioners when preparing Points of Dispute, for it may perhaps suggest that the courts are setting an impossible standard. Whilst they expect Points of Dispute to be short, they also require them to be detailed enough to allow the respondent to be able to respond fully without reverting to their file. Striking a balance could prove difficult to achieve. Practitioners should focus on ensuring that Points of Dispute are sufficiently detailed, whilst bearing in mind that, should the assessment be dealt with by a judge who prefers to keep things short, the time spent preparing longer Points of Dispute might be disallowed. 

In any case, it is fundamental that the Points of Dispute enable the respondent to identify the objections made and the reasons why, in relation to specific items in the invoice or the bill. The courts are unlikely to allow parties to make good deficiently pleaded Points of Dispute "on the hoof" at the hearing or to accept a broad-brush approach.