COST BITES 215: NON-COMPLIANT POINTS OF DISPUTE STRUCK OUT – BUT THE COMPLIANT PARTS REMAIN.

In Christodoulides v CP Christou LLP [2025] EWHC 214 (SCCO) Deputy Costs Judge Roy KC considered the appropriate approach were part of the Points of Dispute to a bill of costs were non-compliant. He held that the appropriate course of action was to strike out the non-compliant PODs, however the compliant elements were allowed to progress to assessment.

“There is no logical or principled reason why the compliant points should be struck out. It would be unfair to the claimant and would constitute a windfall to the first defendant. Such an all or nothing approach is not applied to substantive pleadings. No reason to apply it to costs proceeding was identified or is identifiable.”

THE FACTS

The claimant in the case had brought an action for professional negligence against the defendants his former solicitors and counsel. That action was struck out on the grounds the claimant had disclosed no reasonable grounds for bringing the claim; it was an abuse of process; the claimant’s pleadings were non-compliant and there had been a compromise of the claim against counsel.  The claimant was ordered to pay the defendants’ costs.

THE ASSESSMENT OF COSTS

The second defendant’s costs had been provisionally assessed. The claimant challenged the assessment but failed to itemise points of dispute.  It was held that she was precluded from challenging the provisional assessment.

The first defendant served a bill that was the subject of this detailed assessment.

THE CLAIMANT’S POINTS OF DISPUTE

The Claimant’s Points of Dispute were held to be, in part, non-compliant.  The issue was what the court’s response should be. The judge held that the compliant PODs would not be struck out.

1. 1. Ms Bedford fairly conceded that several of the points within the PoDs, namely 1, 31, and 49.6, whilst far from ideally pleaded, sufficiently identified what was being challenged and why (at least to an extent).

1. 1. She nevertheless contended that (a) all the points stand or fall together; (b) as the PoDs as a whole were non-compliant they should be struck out entirely, including any compliant points therein.

1. 1. I do not accept this. There is no logical or principled reason why the compliant points should be struck out. It would be unfair to the claimant and would constitute a windfall to the first defendant. Such an all or nothing approach is not applied to substantive pleadings. No reason to apply it to costs proceeding was identified or is identifiable.

1. 1. The analysis below therefore excludes these compliant points, which I will in due course determine on their merits in the normal way.

THE NON-COMPLIANT PODS

The PoDs in general

1. 1. These could scarcely be less compliant:

(1) They are the antithesis of short, to the point and focussed. They are prolix (32 pages in length), discursive, and unfocused. They for the most part consist of a scattershot litany of allegations of misconduct and the like which have little if anything to do with the reasonableness of the first defendant’s costs.

(2) Whilst it would have been practicable to follow Precedent G, at least substantially, there has been no attempt whatsoever to do so. The PoDs completely fail to do so.

(3) They do not identify the items in dispute. Notwithstanding their length, they do cite a single item number from the bill.

(4) They do not identify, or least not in any coherent or comprehensible fashion, what reductions in costs the points raised are said to generate, and why.

1. 1. There has thus been wholesale non-compliance. More basically, the PoDs are, as Ms Bedford submitted, virtually incomprehensible.

1. 1. These PoDs therefore contain all the defects identified in Ainsworth and O’Sullivan, but (a) to a much greater extent than in those cases; and (b) with other serious defects in addition.

1. 1. Given that the PoDs in Ainsworth and O’Sullivan were struck out, as a matter of inexorable logic, these PoDs must likewise be struck out.

1. 1. The bottom line is that the wholesale defects in the PoDs make it impossible to conduct the assessment in a manner which is fair, manageable, proportionate and in accordance with the overriding objective.

1. 1. These problems were in no way cured or ameliorated by the claimant’s written submissions (set out in three documents received by me shortly before the start of the hearing and further unsolicited set emailed to me the day following the hearing) or her oral submissions. Quite the contrary:

(1) The submissions effectively doubled down on the misguided approach adopted within the PoDs. The claimant repeated and expanded upon her allegations of misconduct and insisted on seeking to revisit matters decided in the substantive litigation notwithstanding that I repeatedly highlighted that this was not the purpose of the hearing and was not permissible. I will return to these matters below, but the short point here is that these allegations do nothing to address the issues of the PoDs being non-compliant.

(2) With one brief exception, the claimant’s submission failed to address the question of compliance at all. My repeated invitations and urgings to the claimant to address me on the actual point I had to decide proved futile. She simply refused to engage with the point at all.

1. 1. The exception was a suggestion by the claimant that the fact that she only received the file of papers from the original claims (i.e. the underlying litigation against her sister) at the start of November 2024 somehow excused non-compliance. I reject this:

(1) I do not accept that the claimant required these papers to produce compliant PoDss. These papers – which are several removes from the costs I am assessing – cannot have had anything more than marginal relevance at most to that exercise. The papers that mattered were those from the professional negligence claim.

(2) If it truly were the case that the absence of these papers was an insuperable obstacle, the claimant should have applied for an extension rather than producing non-compliant PoDs.

(3) The claimant has in any event had these papers for well over a month. She made no attempt whatsoever to deploy them to produce compliant PoDs.

(4) Indeed, given the consistent pattern of the claimant’s conduct and approach, I have no real doubt that the absence of these papers made no difference to compliance:

(a) The claimant’s mindset is that she is entitled to advance whichever points she wishes in whatever manner she wishes as many times as she wishes irrespective of the requirements of the rules and of the court’s rulings.

(b) She does not appear at any time even to have attempted to identify what the applicable requirements are, much less make any attempt to comply with them.

(c) At no point has she ever even acknowledged the existence of any requirement under the rules. Much less has she acknowledged any possible non-compliance. Still less has she sought to rectify such non-compliance.

(d) This is all the more striking given that both the professional negligence claim itself and her previous challenges to the second defendant’s costs were both struck out for defective and non-compliant pleadings.

(e) Even when the applicable requirements were been drawn to her attention repeatedly during the two hearings before me, she simply ignored them in favour of making submissions on other matters.

(f) It is therefore clear to me that the claimant (i) never had any intention to produce compliant PoDs, (ii) was never going to have had any intention to do so, and (iii) almost certainly never will have any intention to do so.

1. 1. Point (4) immediately above goes to the root of the problems in this assessment (and indeed in the previous one of the second defendant’s costs). The claimant’s mindset is that she is the aggrieved party, that the other side are in the wrong, and that the rules therefore should not apply to her. Her entire approach as described above reflects this. Such a mindset and approach are profoundly misguided. They are not ones which the court could possibly tolerate, much less endorse.

1. 1. I add that the claimant did not apply for an adjournment. However, even had she done so, I would not have been minded to grant one:

(1) Per Ainsworth at [11]:

An adjournment was then sought in order that further Points of Dispute could be filed. The Chief Master refused an adjournment on the basis that: the deficiency in the Points of Dispute had been pointed out in the Points of Reply almost six months before the hearing but Mr Ainsworth chose not to serve anything more.

This decision was upheld. The claimant here can be in no better position.

(2) The reasons for not granting relief in respect of the second defendant’s costs as set out above apply here. Indeed, they do so with even greater force. My previous judgment made crystal clear to the claimant what needed to be done properly to challenge costs and the consequences of not doing so in a compliant way. Ainsworth itself was specifically referenced numerous times in the provisional assessment and then again in the judgement. It is evident that the claimant has paid no heed to this whatsoever. The judgment was nearly six months ago, giving her ample to time to revisit thee PoDs in this assessment.

(3) Indeed, the claimant was placed on even earlier clear notice of the general need to plead clearly and properly and of the terminal consequences of failing to do so. This was one of the bases upon which the professional negligence claim was struck out, which of course was the very event giving rise to the defendants’ costs.

(4) Given the claimant’s mindset, I see no real prospect of the defects being cured were an adjournment granted.

ALLEGATIONS IN RELATION TO CONDUCT

Conduct arguments

1. 1. The claimant makes various allegations of misconduct against the first defendant and its advisers. The two pursued in oral submissions were (1) alleged alteration of trial transcripts from the original claims (referred to above); and (2) alleged breach of privilege.

1. 1. These allegations are a somewhat separate issue and could potentially survive notwithstanding the defects in the PoDs.

1. 1. That is because CPR 44.11 provides a freestanding power to reduce costs in the event of misconduct. Moreover, the power is punitive rather than compensatory; Gempride Ltd v Bamrah [2018] EWCA Civ 1367; [2019] 1 WLR 1545 at [14]. There is therefore no need to identify any connection between the misconduct and any particular element of the bill. Such reductions can be, and often are, broad brush e.g. disallowance of a percentage of the costs.

1. 1. Indeed, given that the misconduct need not relate to any particular element with the bill it is not necessary to plead any CPR 44.11 point within the PoDs, although it will generally be convenient to do so. The allegations could for example be made in a standalone application.

1. 1. However, in this particular case, I have no doubt that the claimant’s allegations fall to be struck out for the following reasons, any one of which would be sufficient. These overlap to a degree.

1. 1. Firstly, the matters in question were raised and rejected in the professional negligence claim. Insofar as they were not, they should have been raised at that stage. The claimant is therefore precluded from resurrecting them by the doctrines of issue estoppel and/or the rule in Henderson v Henderson (1843) 3 Hare 100; Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46; [2014] AC 160 at [22], at [32-33], Finzi v Jamaican Redevelopment Foundation Inc & Ors (Jamaica) [2023] UKPC 29; [2024] WLR 541 at [32-33].

1. 1. Secondly, even leaving aside these doctrines, my role is limited to assessing the second defendant’s costs so as to give effect to Knowles J’s order. It is no part of my function to retry matters in the substantive litigation. I have no jurisdiction to do so. It would be wholly inappropriate for me to do so. I repeatedly made this clear to the claimant during the hearing. She ignored this and continued to seek to press these matters regardless.

1. 1. Thirdly, in the absence of an order reserving conduct issues in the substantive litigation to assessment, CPR 44.11 ordinary applies only to misconduct in the assessment proceedings as opposed to the substantive litigation. See Andrews v Retro Computers Ltd [2019] 1 WLUK 237. The defendants in Andrews alleged that the first claimant had, among other things, lied in his witness statements, misled the court in several respects, abused the defendants’ websites, hacked emails, and raised false allegations. It will be observed that there are significant parallels with the claimant’s approach here.

1. 1. Deputy Master Friston held that it would be contrary to the overriding objective to interpret CPR 44.11 as permitting parties to lengthen detailed assessment proceedings by effectively allowing them a second bite at the cherry. Unless certain issues had been reserved to detailed assessment, costs judges would be overstepping the mark if they made wholesale reductions that would properly be within the remit of the judge who made the order for costs. In ordinary circumstances, CPR 44.11 should not be used to allow paying parties to adjust or negate their costs liability for reasons that were, or could have been, addressed when the costs order was made.

1. 1. Whilst there is a legitimate debate as to precisely where the line here should be drawn, I find that reasoning entirely persuasive insofar as it applies to this case. This is the clearest possible example of an illegitimate attempt to take a second bite of cherry. Indeed, it could be said to be the third or even the fourth bite of the cherry, given that these matters have (or at least could have been) raised in the original claims, before Knowles J and then when seeking permission to appeal. I refer back to one of the reasons given by Stuart-Smith LJ for refusing such permission on the basis of alleged discrepancies with the transcript “if there had been substance in this point, it could and should have been taken on appeal [i.e. in the original claims]. It was not.”

1. 1. The claimant at one point argued that Knowles J had reserved these matters to the detailed assessment when making the costs order giving rise to this assessment. It is clear from the order and the accompanying reasons that he did no such thing. The order itself contains no reservation. The reasons insofar as material simply say that the quantum of costs was a matter for detailed assessment.

1. 1. Pausing there, irrespective of which analytical rubric is applied, this is the clearest possible abuse of process. As I have already noted, the bulk of claimant’s submissions sought resurrect matters already rejected Knowles J and Stuart Smith LJ. Indeed, at times she seemed to be inviting me to revisit matters determined in the original claims.

1. This in fact might fairly be described as doubly abusive. It is collateral attack on the findings in the professional negligence claim, which was itself held to be an abusive collateral attack on the findings in the original claims.

THE RESULT

The judge struck out those parts of the Points of Dispute which were non-compliant (the compliant points remained) and the remaining matters were listed for reassessment.