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Ward v Rai
Factual and Procedural Background
The Claimant sued the Defendant arising from a road traffic accident on 18 September 2019. Liability was admitted subject to causation and quantum; proceedings were issued and settlement on liability/quantum was achieved in January 2023 by acceptance of a Part 36 offer of £546,984. Detailed assessment proceedings were commenced by the Claimant on 3 August 2023. Item 39 (work on documents) claimed 134.1 hours supported by a 24-page schedule. The Defendant served points of dispute on 30 August 2023; Point 23 challenged item 39 in general terms and referred to an annotated documents schedule which was not at that stage provided.
The Defendant served the annotated documents schedule late (after hours on 31 July 2024), identifying individual entries and offering significantly lower hours. A two-day detailed assessment was listed for 5–6 August 2024. At the hearing the Claimant applied to strike out Point 23 as non-compliant with PD 47 and Ainsworth and to refuse permission to rely on the late schedule. The Costs Judge (Judge Friston) declined to strike out Point 23 and permitted reliance on the annotated schedule, adjourning to a third day.
On 8 November 2024 the assessment was completed and the Costs Judge made orders on assessment and costs, including limiting recovery of some costs because of a Part 36 offer. The Claimant appealed to the High Court. Judge Hill set aside the Costs Judge's decisions: she struck out Point 23, refused permission to rely on the annotated schedule and remitted consequential issues. The Defendant appealed to the Court of Appeal. Representation at various stages included Attorney Lyons (instructed by Company A) for the Defendant and Attorney Bedford and Attorney Mason (instructed by Company B) for the Claimant.
Legal Issues Presented
- Whether the Costs Judge was entitled to refuse to strike out Point 23 of the points of dispute and to permit reliance on the late-filed annotated documents schedule (i.e. how PD 47 para 8.2 and para 13.10 should be applied to late variations).
- Whether the High Court (Judge Hill) erred in setting aside the Costs Judge's case management decision and, relatedly, the proper standard on appeal of a first-instance case management decision.
- Whether the High Court substituted its own view rather than concluding that the Costs Judge's decision was outside the generous ambit of his discretion, and whether lesser sanctions than striking out were properly considered.
Arguments of the Parties
Claimant's Arguments
- Point 23 did not comply with PD 47 paragraph 8.2(b) and Ainsworth because it made general assertions without identifying specific bill entries or grounds of dispute; it was therefore non-compliant and should be struck out.
- The annotated schedule served very late was curative (not merely augmentative) and should not be permitted; the Costs Judge should have refused permission under PD 47 paragraph 13.10 and applied the overriding objective to refuse relief.
- Striking out Point 23 would have avoided a third day of hearing and wasted court resources; the Defendant's conduct caused the delay and any unfairness to the Defendant resulted from its own default.
Defendant's Arguments
- The original points of dispute, viewed broadly, provided sufficient notice to enable a fair, broad-brush assessment and to allow the Claimant to know the case it had to meet.
- The annotated schedule, while late, was not an ambush; both parties were at fault for delay, settlement discussions had been ongoing, and paragraph 13.10 gave the court wide powers to permit late variations subject to conditions, including costs.
- The Costs Judge's decision to permit reliance on the schedule and adjourn was a permissible exercise of discretion and a suitable way to secure a fair process.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 [2020] 1 WLR 2664 | Paragraph 8.2 of PD 47: points of dispute must be short, focused and state concisely the nature and grounds of dispute; requirement of sufficient particularity. | The Costs Judge applied the Ainsworth test as the appropriate standard for particularity; the High Court concluded Point 23 did not comply with Ainsworth but considered strike-out a discretionary remedy; the Court of Appeal reviewed that exercise of discretion. |
| Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 | Principles governing appellate interference with case management decisions (discretionary; interference only for misdirection, failure to take relevant matters into account, taking irrelevant matters into account, or a decision outside generous ambit of reasonable disagreement). | The Court of Appeal applied Lewison LJ's formulation to assess whether the High Court had properly interfered with the Costs Judge's discretionary case management decision. |
| Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64 [2014] 1 WLR 4495 | Emphasis that the appellate question is whether the decision could properly have been made, not whether the appellate court would have decided differently. | The appellate court invoked the authority to reinforce caution in overturning the Costs Judge's decision and to frame the standard of review. |
| FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 [2014] FSR 29 | Analogy concerning appeals on factual assessments; appellate court not in same position as first-instance judge. | The court relied on the analogy to caution against re-assessing case management choices with hindsight and to explain appellate limitations. |
| In re A (Children) [2011] EWCA Civ 1205 [2012] 1 WLR 595 | Responsibility of advocates to raise with the judge any omission, ambiguity or deficiency in a judgment. | The court cited the passage to criticise the Claimant for not seeking clarification or correction from the Costs Judge earlier when concerns about reasoning could have been addressed. |
| O'Sullivan v Holmes and Hills LLP [2023] EWHC 508 (KB) [2023] Costs LR 331 | Example treating the question of compliance with PD 47 paragraph 8.2 as a binary issue (compliant or not). | The decision was relied on in submissions about how the Costs Judge should approach compliance; the Court of Appeal noted submissions but concluded the Costs Judge had the non-compliance in mind when exercising discretion. |
| Celtic Bioenergy Ltd v Knowles Ltd [2022] EWHC 1223 (QB) [2022] Costs LR 837 | Discretion under PD 47 paragraph 13.10 to allow or disallow late documents; there may be a point at which a document is "just too late". | The Court acknowledged the case but observed it did not limit the scope of the court's discretion; it supported the proposition that lateness can justify refusal but does not prescribe a mandatory result. |
| CIP Properties (AIPT) Ltd v Galliford Try [2015] EWHC 1345 (TCC) | Stricter approach to late amendments and the relevance of proportionality and compliance with rules after the 2013 reforms. | The authority was relied upon in argument about the significance of compliance; the Court of Appeal accepted the change in culture but held the Costs Judge could properly weigh these factors in exercising discretion. |
| Barton v Wright Hassall LLP [2018] UKSC 12 [2018] 1 WLR 1119 | CPR 1.3 duty of parties to help the court further the overriding objective. | The point was raised as a ground in the High Court; the High Court considered it, but the Court of Appeal found the Costs Judge had been entitled to take the parties' conduct into account and did not err in principle. |
Court's Reasoning and Analysis
The Court of Appeal emphasised the restricted role of an appellate court when reviewing first-instance case management decisions: interference is permitted only if the decision misdirected in law, omitted relevant factors, took irrelevant factors into account, or was plainly wrong in being outside the generous ambit where reasonable decision-makers may differ. The court noted practical constraints: inability to recreate the judge's on-the-ground perspective, pressures of ex tempore decisions and the risk of hindsight bias.
The court examined the Costs Judge's reasons: he had applied the Ainsworth standard (requiring sufficient particularity), recognised the lateness of the annotated schedule, critiqued both parties for failures to ensure timely disclosure, and considered paragraph 13.10 powers and the overriding objective when deciding to permit reliance on the schedule subject to costs and an adjournment. The Court of Appeal concluded that the Costs Judge had the non-compliance and the explanation for the delay in mind when exercising discretion.
The court rejected the High Court's intervention as overstepping the permissible appellate role. Although Judge Hill found Point 23 non-compliant with PD 47 and Ainsworth and determined the adjournment was necessitated by the Defendant's conduct, the Court of Appeal held the Costs Judge's approach disclosed no error of principle, did take relevant matters into account, and remained within the generous ambit of his discretion. The Court therefore restored the Costs Judge's decision allowing reliance on the annotated schedule and refusing to strike out Point 23.
Holding and Implications
APPEAL ALLOWED; the decision of the Costs Judge was restored.
Direct effect: the Costs Judge's decision declining to strike out Point 23 and permitting reliance on the late-filed annotated documents schedule (subject to costs consequences and an adjournment) stands. The Court emphasised that while compliance with PD 47 paragraph 8.2 and timely conduct are important, first-instance judges retain a broad discretion under paragraph 13.10 to permit late variations subject to conditions. No novel legal principle was created; the judgment reinforces existing appellate principles limiting interference with case management decisions and reiterates that non-compliance risks strike-out or costs sanctions.
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