Background
This is a second appeal in detailed assessment proceedings following a road traffic accident claim. Mr Paul Ward settled his claim against Mr Gagandeep Rai for £546,984 in January 2023 after liability was admitted. Mr Ward then commenced detailed assessment of his costs on 3 August 2023, claiming 134.1 hours for work on documents at a cost of £38,819.50 plus VAT. The total bill was £129,196.50 including VAT.
Mr Rai served points of dispute on 30 August 2023. Point 23 challenged the document work hours, but was drafted in general terms without identifying specific bill entries. The point of dispute referred to an annotated schedule of objections that was supposed to provide detailed challenges but was never actually attached. The defendant did not serve this annotated schedule until 31 July 2024—after hours and just four working days before the hearing scheduled for 5–6 August 2024.
At the detailed assessment hearing, Mr Ward sought to strike out Point 23 as non-compliant with the Civil Procedure Rules Practice Direction 47 paragraph 8.2 and the requirements established in Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178, which requires points of dispute to identify specific items and grounds concisely. The Costs Judge refused to strike out Point 23 and permitted reliance on the late-filed annotated schedule, adjourning the hearing to a third day.
The Court’s Holding
The Court of Appeal, allowing the defendant’s appeal against Mrs Justice Hill’s decision, held that the Costs Judge did not err in principle and that appellate courts must exercise caution before interfering with first-instance case management decisions. Lady Justice Falk emphasised that an appellate court may only interfere where the judge misdirected himself in law, failed to take relevant factors into account, or made a decision plainly wrong and outside the generous ambit of reasonable decision makers. The Costs Judge’s decision fell comfortably within this ambit.
The court found that while Point 23 was non-compliant on its face—referring to a non-existent schedule—the Costs Judge properly considered the circumstances justifying discretionary relief. Both parties shared responsibility for the procedural failure: the defendant had been on notice of the non-compliance since the points were served, but the claimant had also failed to chase the annotated schedule. The explanation given by the defendant (that parties were in settlement discussions and hoped to avoid a hearing) was not egregious, though not a strong excuse. The court rejected arguments that the explanation was “circular,” noting that if timely provision would have aided settlement, it would have been supplied much earlier.
The court emphasised that while procedural compliance and the overriding objective are important, case management decisions are often about finding “the least worst solution where parties have diametrically opposed interests.” The Costs Judge’s discretion to permit the late variation under Practice Direction 47 paragraph 13.10(2) was properly exercised.
Key Takeaways
- Appellate courts reviewing case management decisions must apply a high threshold, interfering only where there is legal misdirection, failure to consider relevant matters, or decisions plainly outside the generous ambit of reasonable decision makers.
- Non-compliance with procedural rules does not automatically warrant striking out when both parties share responsibility and the court can achieve fairness through case management tools other than strike-out.
- Courts will assess explanations for procedural breaches—deliberate tactical moves weigh heavily against relief, but neutral or inadvertent failures weigh less strongly.
- Practice Direction 47 paragraph 13.10(2) gives courts wide discretion to permit variations to procedural documents, including late-filed ones, particularly where adjournment is inevitable in any event.
Why It Matters
This decision establishes important boundaries on the strike-out remedy in detailed assessment proceedings. While Ainsworth v Stewarts Law LLP established strict requirements for points of dispute compliance, Ward v Rai confirms that courts retain significant discretion to manage procedural failures pragmatically. Practitioners cannot rely on strict non-compliance alone to strike out points of dispute; they must show that fairness cannot be achieved through other means or that the default constitutes culpable conduct. The decision also reinforces that appellate courts will be hesitant to second-guess first-instance judges’ case management calls, particularly where those decisions involve balancing competing interests and are made under time pressure.
For costs practitioners, the judgment underscores that while procedural compliance matters, mutual responsibility for breaches and the availability of fair procedural alternatives will inform whether strict enforcement is required. The court’s emphasis on proportionality of costs to the sums at stake—noting that the gap between the parties’ final offers was only £5,000 on costs approaching £130,000—also signals judicial concern about uneconomic appeals.