PAYING PARTY REFUSED PERMISSION TO RELY ON LATE POINTS OF DISPUTE IN ASSESSMENT: DECISION UPHELD ON APPEAL

In Celtic Bioenergy Ltd v Knowles Ltd [2022] EWHC 1223 (QB) Mrs Justice Foster refused the defendant’s appeal in a case where a very late addition to the points of dispute had been refused by Master Campbell.  The issues that the defendant attempted to raise were made late and could have been made many months earlier. There was no error in decision to disallow the defendant from raising them at the late stage.

“I do not accept, as was sought to be said at one point by the Paying Party that there is a presumption under the rules that documents will be accepted, no matter how late nor how many new points they raise“

THE CASE

After commencement of the claimant’s costs were commenced the defendant filed points of dispute, it then filed a further document entitled “Details Points of Dispute”.  It later filed “Supplementary Points of Dispute” about a month before the first day of the detailed assessment. These latest “Supplementary Points” took issue with the claimant’s conditional fee agreement and questioned whether the indemnity principle had been complied with.

THE MASTER’S DECISION AT THE ASSESSMENT HEARING

Master Campbell refused to allow the Supplementary Points to stand.  If they were allowed this would lead to an adjournment of the detailed assessment and not further the overriding objective.

“17. The overriding objective is clear that the court must deal with cases justly and at proportionate cost, and has a duty under rule 1.1 to ensure that the case, here the detailed assessment, proceeds promptly and fairly. If I allow the supplementary point to stand, then inevitably there will be an adjournment of the detailed assessment today, has been listed for months, and they do not consider that it is a just or reasonable outcome so far as the receiving party is concerned. For those reasons I agree with Mr Lyons it is simply too late. The point was there for the taking months ago. To raise it within a few weeks or less than a month of the hearing, with no application being made before today when it was clear that the claimant was objecting, and giving, in my view, the receiving party inadequate notice of it, inevitably will require today’s hearing to be adjourned. That is not in my view a just outcome. Therefore for those reasons the application fails.“

THE DEFENDANT’S UNSUCCESSFUL APPEAL

The defendant’s appeal on this issue was unsuccessful.

Consideration

1. 1. Although detailed and well expressed, I am wholly unpersuaded by the arguments made on behalf of the Paying Party. It is in my judgement clear from the transcript of the argument before the Master that he considered all the arguments raised and his decision evinces no error of principle nor mistake that could found a successful appeal.

1. 1. It is not therefore the case that the Master failed to take relevant points into account but rather that he rejected the case advanced by Dr Friston. It is informative to read the submissions and discussion in the transcript before the short ruling given by the Master.

1. 1. I do not accept, as was sought to be said at one point by the Paying Party that there is a presumption under the rules that documents will be accepted, no matter how late nor how many new points they raise. The rules, understandably, give a wide discretion to the costs judge to decide, in all the circumstances of the case, whether it is in furtherance of the overriding objective, namely, to decide cases justly, that the particular document ought to be received. It cannot be gainsaid that there will come a time when it is using the words of the Master, “just too late”. It cannot be characterised as perverse or otherwise unlawful for the Master to have come to that conclusion in this case for the reasons he gave in his judgment.

1. 1. The analysis of the Master’s decision in terms of a consideration of irrelevancies does not assist Dr Friston. It is not irrelevant that the Receiving Party vigorously opposed reliance on the third iteration of the Points of Defence. They indicated that they may need to prepare further witness evidence to deal with the new matter raised. This further loss of time (even if, as it appears, the hearing later had to adjourn part heard in any event) was properly taken into account by the Master. The arguments as to safeguards which arise where sufficient knowledge is imparted concerning potential issues cannot assist in the current context.

1. 1. It is no answer to the points concerning the delay to say that the reference to the CFA was obscure. As the Master stated:

“But that is the point, that you could have asked. I mean if the Bill had been silent as to the way the matter had been financed, then it would be a point, but it states in terms work was undertaken in compliance with a conditional fee agreement, so when the costs lawyer was reading papers and working out the case in September 2019, surely a bell should have rung if he was concerned about it.“

1. 1. The most telling point in my judgement is that the information was contained in a solicitor’s statement in early January 2019. It was a year later that eventually a third Points of Dispute was produced for which, inevitably, permission was necessary. The Respondent makes the pertinent point that the second Points of Dispute was served in October, even if not complete, the material was available both from the original schedule when it might have been requested, and in developed form, from the solicitor’s statement in January 2019.

1. 1. The present case is in essence a simple one: the advisers to the Paying Party overlooked the striking detail contained in the January 2019 communication – which itself referred to costs. It had been presented in a long-running dispute between the parties, many strands of which were concerned with the payment of costs, and it cannot possibly be said the material was in some way obscurely presented, concealed or unavailable. It is nothing to the point that the narrative information did not descend to detail many months later. As the exchanges with the Master reveal, it was put to the Paying Party that it was always open to them to raise a point on it if they wished, since the CFA was mentioned in the narrative. The phrase used by Dr Friston to suggest that there was no fault in forgetting what the solicitor had said in January 2019, was it imposed on his clients an “unrealistic expectation of vigilance”. This is not a fair reflection of the Master’s interpretation of the facts. To him it was clear that the point was always available to be taken. Further, there was no evidence of what materials the costs draftsman had, nor at what point the solicitors had appreciated there was a point to be taken had drawn it to their attention.

1. 1. In the particular circumstances it is not open to the Paying Party to seek to lay blame on the draftsman of the narrative information: it was always open to the Paying Party to ask a question, as the Master stated. However, the real point is, all the detail necessary to raise an issue, if thought appropriate, was there on the face of a statement from a solicitor which itself was dealing with the basis upon which the costs were to be paid; that statement was to hand from January 2019. It was plainly with the solicitors and could and should have been given to the costs draftsman to take into account. As already stated, there is no clear evidence as to who had what documentation and when they had it. Evidently, the importance of its contents was overlooked, and overlooked successively as other iterations of the Points of Dispute were drafted. Even when Counsel was instructed and brought the matter, necessarily, to the attention of the solicitors, there was a period of about two months until late January 2020 before anything was done. Application to admit the third document was also made only at the hearing.

1. 1. It was suggested that the Master had not taken into account the points made to him on behalf the Paying Party, in all their complexity, and they were not canvassed in the judgment he gave. He confined his reasons purely to the overriding objective and resources, it was said, and that the assessment took three days so additional time would not have added much to the hearing.

1. 1. I reject this criticism. Firstly, to an extent it was argued that there had been a failure to give adequate reasons by the Master. I disagree. He dealt proportionately with what, in essence was an uncomplicated point.

1. 1. The submission made by the Receiving Party concerning the exigencies of an ex tempore judgment in the course of a case, is well made. It is trite that in the circumstances of an ex tempore judgment, and in indeed in any event, reasons may well not deal with every point made or every particular issue arising: the obligation is to make sure that the losing litigant understands the reasons for not wining; that objective was plainly fulfilled. This was a preliminary point taken and decided in the course a detailed assessment. The Master properly referred himself to the overriding objective in the course of his discussions with Counsel, and in his judgment, the points that were raised were considered in light of it.

1. 1. It is not possible to raise a reasons challenge to the Master’s preliminary point in my judgement, and as I have said, the rational foundation for the decision is much illuminated by reading the submissions made to him and the exchanges which he had with Counsel before giving his judgment.

1. 1. Further, the matter was set down for one day and the submission of the Receiving Party was that they wished to consider whether further evidence would be needed if the new point were allowed to be taken. In my judgement the Master was correct to place weight on the obvious inconvenience and further expenditure of costs. He was entitled to conclude, in the context of the initial oversight of the materials potentially supporting a new point, the further iteration of the Points of Defence without mentioning it, and thereafter, the considerable delay even once Counsel was instructed, on balance, that the document was too late.

1. 1. Although before us much emphasis was put on what might be an available point of some depth and interest, namely the effect of possible circularity of the CFA, it seems to us that the Master was entitled to look at the course of dealing and conclude the Paying Party had not placed so much importance on the issue until a month before the hearing when it drafted a further addition to its Points of Dispute. In any event, as Mr Lyons pointed out, the fact that the point may be a good one is one element in the balance, it does not compel an adjournment and mandate the opportunity to argue the point on another day.

1. 1. My attention was drawn to the case of Edinburgh v Fieldfisher LLP Case 34 [2020] Costs LR 549, an application for permission to appeal the Master’s refusal to allow a variation to Points of Dispute in which an issue arose on the sister rule in 46PD. Chamberlain J said at paragraph 11:

“The sole question was whether this court should interfere with her decision not to allow Mr Edinburgh to amend his points of dispute in terms of the supplemental points provided just before the start of the hearing on 2 December 2019. As to that, Mr Blackburn drew attention to the provisions of CPR 46PD, para 6.15:

“If a party wishes to vary that party’s breakdown of costs, points of dispute or reply, an amended or supplementary document must be filed with the court and copies of it must be served on all other relevant parties. Permission is not required to vary a breakdown of costs, points costs caused or wasted by the variation.“

And at paragraph 18:

“ … the default position under that paragraph is that parties may vary points of dispute if they so wish. That default position is, however, subject to a general discretion to disallow the variation or to allow it upon conditions. This is an important discretion, without which it would be possible for parties to ambush their opponents by waiting to the last minute to file supplemental points of dispute raising points not previously heralded. This would be productive of unfairness. Paragraph 6.15 does not prescribe how the discretion to disallow supplemental points of dispute should be exercised, but the overriding objective (enabling the court to deal with disputes of this kind) “justly and at proportionate cost” should be borne in mind …“

1. 1. Dr Friston before us accepted on questioning, that the ambush mischief was not the sole rationale for the discretion to exclude variations. The overarching objective requires regard, as the Master so regarded, to the issues of proportionate cost and overall justice.

1. 1. The answers to this appeal given by Mr Lyons as set out above have force, and as he submitted orally, the wide terms in which the discretion to exclude is cast reflect that this a matter for the judgment of the Master “on the ground” in all the circumstances of the case before him.

1. 1. I conclude therefore that this was unimpeachable as an application of the CPR both PD 47 and CPR 1(2) in exercise of the Master’s discretion to dismiss the application. He had regard to the relevant points and the interests in play, there is no broader principle in issue here and I can discern no appealable error in his decision.

1. 1. I have had the benefit of a transcript of the hearing below and are clear that there is no procedural error of this nature, nor otherwise. The Master has shown the principles on which he acted and the reasoning which led him to the decision, which need not be elaborated (see also English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605) and there is absolutely no duty to deal with every argument presented by Counsel. It is not without relevance that, as observed on more than one occasion by the Respondent to the Appeal, the Master is a highly experienced expert in the field of costs.

1. 1. The reason the Master gave on the transcript for refusing permission to appeal is, in essence, the reason I refuse this substantive appeal:

“I’ve read the overriding objective and it says at para 1.12 that dealing with a case justly and at proportionate cost etc etc appropriate share of courts resources. It seems to me if I had given permission to widen its PODS yet again this would not have been dealing with the case expeditiously and fairly. Had the paying party complied with rules in first place there would have been no point. The indemnity principle was there for the taking from the beginning.” (Agreed Note of Application for Permission to Appeal Before DMC on Day 3 of Assessment.)