Further Success for Kain Knight in Latest Costs Appeal: Ward v Rai [2025] EWHC 1681 (KB)

Posted 3 July 2025

Judgment handed down by Mrs Justice Hill in the costs appeal Ward v Rai [2025] EWHC 1681 (KB) sees further success for Kain Knight.

3 July 2025 saw the handing down of Mrs Justice Hill’s judgment in the costs appeal of Re: Ward v Rai [2025] EWHC 1681 (KB).

Nick McDonnell (Director and Costs Lawyer) and Sianette Boydon (Solicitor) both of Kain Knight together with Tom Mason of Hailsham Chambers acted for Ralli Solicitors, the successful Claimant/Appellant. The judgment reiterates the importance of compliant points of dispute and when late amendments to points of dispute are ‘too late.’

The Facts

The claim arose from a road traffic accident on 18 September 2019. The Defendant admitted liability for the accident. Causation and quantum remained in dispute. The Claimant issued the claim, and it was duly settled on 11 January 2023 by way of a Part 36 offer for the sum of £546,984.

On 3 August 2023 the Appellant commenced detailed assessment proceedings. The claim for costs was £129,196.50 and included a claim for 134.1 hours of document time. The schedule of document work was 24 pages long comprising of 418 individual entries and described the date of the work, the nature of the work, the person who had carried out the work and the time spent on it.

The Defendant’s points of dispute, amongst other challenges to the bill, made some very broad comments disputing the overall reasonableness and proportionality of the document time and offered 68.2 hours against the claim. The Defendant also advised he intended to rely on an annotated documents schedule of specific objections in support of the points of dispute. However, the annotated schedule was not served with the points of dispute.

The Claimant’s replies claimed the points of dispute did not comply with CPR.r.47 PD 8.2(b) and, relying on the Court of Appeal’s decision in Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 argued the Defendant’s the challenge to the document time should be struck out (Ainsworth had upheld the Senior Costs Judge’s decision that points of dispute must comply with CPR.r.47 PD 8.2 and must be specific in order to assist parties and the Court to determine what is in dispute and why. Where they are not they may be struck out).

The claim for costs was listed for a detailed assessment hearing. However, two working days before the hearing, the Defendant served the annotated document schedule. Not only did this document, for the first time, set out the Defendant’s specific objections to individual document time entries, it did so for different reasons to those contained in the points of dispute and arrived at a different, lower offer for the total document time.

The Detailed Assessment Hearing 

The assessment came before Deputy Costs Judge (DCJ) Friston on 5 and 6 August 2024. On the second day, the ‘document time’ issue was considered. The Claimant maintained his argument that the Defendant’s original point of dispute as it related to document time did not comply with CPR.r.47 PD 8.2(b) and as such, per Ainsworth, it should be struck out. Furthermore, the Defendant should not be permitted to rectify matters by relying on the annotated document schedule of specific objections due to its extreme lateness of service.

After hearing argument from the parties’ Counsel, DCJ Friston declined to strike out the ‘document point of dispute,’ permitted the Defendant to rely on the annotated document schedule despite its late service and adjourned the detailed assessment part heard to a third day.

The detailed assessment hearing resumed on 8 November 2024 where a line-by-line assessment of the document time took place. The bill and interest was assessed in the sum of £97,267.53. The Defendant had made a Part 36 offer on 12 June 2024 in the sum of £100,000. Accordingly, the Claimant was awarded his costs of assessment up to 3 July 2024, the expiry of the relevant period, on the standard basis. The Defendant was awarded his costs of assessment for the period thereafter. 

The Appeal

The Claimant appealed arguing that DCJ Friston was wrong to (i) not strike out the original points of dispute for failing to comply with CPR.r.47 PD 8.2(b); and (ii) was wrong to permit the Defendant to rely on the annotated schedule given its extremely late service.

The appeal came before Mrs Justice Hill DBE. Sitting with Costs Judge Leonard, Hill J allowed the appeal noting the following points:

(i)                       Detailed assessment is intended to be a streamlined process to assist the parties in negotiating an agreed sum in settlement of a claim for costs;

(ii)                    The only reason the detailed assessment here went into a third day was because the DCJ declined to strike out the ‘document point of dispute’ and allowed the Defendant to rely on the annotated schedule;

(iii)                  The Defendant had been on notice that the Claimant’s position was that the ‘document point of dispute’ was not compliant with paragraph 8.2(b) or Ainsworth since 4 January 2024, some 7 months before the detailed assessment hearing and the Defendant had taken no steps at all to remedy the position until 2 working days before the hearing;

(iv)                   The reason given by the Defendant for the delay in serving the schedule (that he had hoped the parties would achieve settlement and avoid the need for a hearing) was circular – settlement was much more likely to be achieved if the Claimant understood the case against him in detail;

(v)                     The Claimant had sought a 2 day listing for the detailed assessment hearing which, were it not for the issues over the document time, would have been adequate. However, the DCJ’s decision meant that the detailed assessment continued into a third day, leading to additional costs and delay and it was hard to see how that was consistent with the requirements of the overriding objective and to deal with the case “justly and at proportionate cost” and “saving expense.”

(vi)                   The overriding objective, of course, requires that cases be dealt with “fairly” too, but here, the unfairness to the Defendant that would be caused by the ‘document point of dispute’ being struck out and the schedule disallowed was entirely of his own making.

For those reasons, the appeal was allowed.

Nick McDonnell (Director and Costs Lawyer) oversaw the running of this appeal at Kain Knight Costs Lawyers.

Nick McDonnell comments “Mrs Justice Hill’s judgment reiterates the necessity for a paying party’s points of dispute to be drafted in a way which enables the parties and the Court to determine precisely what is in dispute and why, and where they are not, paying parties risk their non-compliant points of dispute being struck out. 

The judgment also reinforces the need for parties to conduct litigation in accordance with the overriding objective and, where conduct, such as submitting late amendments leads to the parties and the Court spending unnecessary time and incurring unnecessary costs, they are unlikely to be afforded any sympathy and, in this case, disallowed.”