Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 – Solicitor/Client costs guidance

The court of appeal has upheld a decision made by a Senior Costs Judge that Points of Dispute are to be more specific in order to help the parties and the court ‘determine precisely what is in dispute and why’.

The decision was made in the matter of Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 in which a Claimant’s made an application for the costs to be assessed under Part 3 of the Solicitors Act 1974 following a family law matter.

In the hearing before the senior costs judge, points were dealt with in the usual way. When dealing with the documents time, the Claimants draftsman asked the judge to consider the entire item on a broad brush approach.

Stewart (the Defendant’s) objected to the approach on the basis that specific objections were not been made. They did not know what had been objected to and did not have time to go through each entry in the allotted one-day hearing.

Master Gordon-Saker considered that:

“While the claimant has indicated that all entries are disputed, it isn’t stated why any particular entry is disputed and that does cause the defendant a bit of a problem because how can they prepare for a detailed assessment when they don’t know what is being alleged against them.”

Master Gordon-Saker therefore dismissed the point of dispute in respect of document time. He considered that a broad-brush approach placed the Defendant and court in an unfavourable position.

The Claimant had not specified which items were in dispute and why and the Defendant was unable to consider the file papers in order to determine the contents of the work undertaken and the fee earner who conducted the work. The costs judge further noted that he had read the papers and was not able to identify which particular items were challenged and why.

In the circumstances, Master Gordon-Saker dismissed the objection on document time as it had not been properly pleaded.

• The decision was upheld by HHJ Klein, sitting as a High Court Judge.
• At the court of appeal, the Claimant’s appeal was dismissed.
• The court rejected the Claimants submission that dismissing the documents time meant he had lost the right to assessment under the Solicitors Act. The court found that there was no absolute right to assessment, rather that the bill is subject to the rules of the court.

Where a party acts in such a way as to fail to comply with the overriding objective, the court is entitled to refuse them to be heard.

Precedent G

Precedent G apples to solicitor act assessments. The court held that:

“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. That is the very purposes of such a document.

“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 proportionate.” 

The points of dispute must address whether the item in dispute is unusual in nature or amount. The court and paying party must be in a position to know what item is disputed and why so that the paying party may seek to justify the item in dispute.

Going forward, PD47 8.2 states that the points of dispute should be short and to the point. However, party’s will now have to ensure that they identify specific points and the grounds for dispute. It is unlikely that the court will allow a party to raise these through oral argument as the opposing party is likely to be prejudiced.

Particularly in solicitor-client matters where the client has generally seen the solicitor’s full file of papers.

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