MASTER ENTITLED TO STRIKE OUT UNPARTICULARISED GROUNDS OF DISPUTE IN SOLICITOR AND OWN CLIENT ASSESSMENT: BE PARTICULAR OR ELSE…

In Ainsworth -v- Stewarts Law LLP [201] EWCA Civ 897 HHJ Klein (sitting as a High Court judge) dismissed an appeal against an order dismissing a former client’s challenge to work done on documents. The Master held that the claimant’s response to the bill of costs was too vague.  The claimant had not responded to the bill properly, and the objections to the work done on documents were dismissed.

 

“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.”

THE CASE

This was an appeal from an assessment of solicitor and own-client costs.  The claimant filed points of dispute to the bill which were put in very general terms.

THE GENERAL NATURE OF THE CLAIMANT’S OBJECTIONS

The claimant’s response to the bill of costs was put in very general terms.  The judge observed:

“… the clear purpose of the claimant’s response was to try to shift the burden of proving the reasonableness of each and every item and so their recoverability onto the defendant. In the case of sch.3 there were twenty-one items which were responded to in this way and there were many more items in schedules one and two which were responded to in this way. It is to be noted that –
  1. The claimant sought to respond to the three schedules by making two broad generic complaints, namely that the time spent on each item was excessive and that work was duplicated. 2. But the claimant purported to reserve for himself the right to make whatever other or further objections to each item he wanted to make orally at the hearing.

THE DEFENDANT’S RESPONSE

The defendant’s response set out a clear warning to the claimant that the objections were too broad brush.

“The vast majority of objections are of a general broad-brush basis which does little to assist the court. Given that the claimant costs draftsman was granted access and carried out an inspection of the defendant’s papers in person prior to the service of points of dispute, this failure is surprising and does little to further the overriding objective. The defendant cannot provide any meaningful reply to this general point in the absence of itemised points of dispute being served, permission to rely on the same being a matter for the court and the defendant’s position will be reserved and the court will be asked to dismiss this point.”

THE MASTER’S JUDGMENT: NEITHER THE COURT NOR THE DEFENDANT KNOWS THE CASE IT HAS TO MEET

 

“The difficulty with that, it seems to me, is that the claimant has not set out in his points of dispute which items he wishes to challenge and why, and that does cause, as the defendant has indicated in his reply, a difficulty in respect of items which have not yet been identified. They would need to look at the attendance notes to see what work was done and why and the context in which it was done in order to seek to explain why the time claimed is reasonable, if indeed that is the objection, or why a particular fee earner was engaged in doing it and why, possibly, more than one fee earner was engaged in doing it. 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. Insofar as the claimant states that all entries are disputed, it seems to me that it would be beholden on him to explain why each particular entry is challenged and whether he is asserting that no time should be allowed or reduced time should be allowed or whether the work should have been done by a different grade of fee earner, but as pleaded, the points of dispute, it seems to me, do not raise a proper challenge to the documents items and certainly do not raise a challenge which can be properly asked by the defendant without a considerable amount of time being spent in looking at the papers to reply to that challenge and that, it seems to me, is a process which, if it is to be done, should be done in advance of the hearing rather than at the hearing. One can well understand why Mr. Paul is seeking to adopt the approach that he is of encouraging the court to take a broad brush, but the difficulty with that approach is that we are not going to be looking at every item. We will only be looking at particular items and presently, apart from Mr. Paul, none of us knows which items those are going to be. It seems to me that that does put the defendant in a difficult position, it also puts the court in a difficult position. I read the papers in the light of the points of dispute as they are pleaded, and I was not able to identify which particular items are challenged or why. In the circumstances, I think the only fair course is to dismiss that point of dispute on the basis that it has not been properly pleaded”

 

THE MASTER’S DECISION

The judge discussed the range of options open to the Master and found that the decision the Master made, to disallow any objection to the work done on documents, was well within the range of reasonable responses.

41 There were a range of options open to the Master in practice which might have furthered the overriding objective from, at one extreme, making no order and allowing the claimant to conduct the hearing in whatever way he liked for as long as he liked to the other extreme, which option the Master took, namely to summarily dispose of the claimant’s objections to work done on documents.
42 Subject to the entitlement grounds of appeal, the choice the Master made might only be illegitimate in the sense of not furthering the overriding objective in this case, if that choice was not a proportionate response to the claimant’s failure himself to further the overriding objective. In this case –
  1. The hearing was fixed about five months before it took place. 2. By the 5 February 2018 order the claimant had the right to inspect the defendant’s file of papers and that right was apparently exercised. 3. From April 2018, so from about five months before the hearing, the claimant knew from the defendant’s reply to the points of dispute that the defendant was complaining that it could not properly respond to the points of dispute on work done on documents because of the generic content of the points of dispute on that work and the claimant also knew that the defendant would be asking the Master to, “dismiss” the claimant’s objections. 4. The claimant had the prima facie right to amend the points of dispute and give further particulars of his objections to work done on documents but did not do so. 5. The claimant’s representative at the hearing before the Master clearly appreciated that the points of dispute did not particularise the claimant’s complaints about individual items on the three schedules and he clearly also appreciated that the defendant was somewhat in the dark over the claimant’s objections. That is something which the claimant’s lawyers ought to have appreciated too simply from reading the points of dispute. 6. As I have explained, if the claimant had been allowed to proceed with his challenge, each and every one of the items in the three schedules, at the very least, the hearing before the Master would have had to have been adjourned part-heard. Even had it been appropriate for the Master to consider only a selection of items, either because it was appropriate to adopt a broad-brush approach or because the claimant abandoned his challenge to some of the items, I am not confident on the available information the hearing before the Master could have been concluded in the available time. 7. It was incumbent on the parties to ensure that the court had an accurate time estimate for the hearing before the Master, a point reinforced by the 5 February 2018 order, to ensure it is reasonable to suppose that the hearing did not have to be adjourned part-heard.

 

NO NEED FOR A BENIGN APPROACH

The judge also pointed out that a “benign approach” to generic objections may not be applicable in a solicitor and own-client assessment.  In the latter the client has the opportunity to see the entire file.

45 Mr. Munro also pointed out that in practice, cost judges frequently adopt a benign approach to the content of points of dispute, being content to accept generic objections to categories of work. That may be so, and it is possible to understand why that is so where the detailed assessment is of inter partes costs where –
  1. The burden of proof is effectively on the receiving party in the run of the mill standard basis assessment and, 2. Where the paying party does not have access to the receiving party’s solicitor file.