The defendant costs specialists

Late service of Replies to Points of Dispute

By on Apr 3, 2014 | 23 comments

The issue over late service of optional Replies in detailed assessment proceedings rumbles on. I cannot comment on whether the Senior Courts Costs Office has developed a “policy” line on this point (other than referring you to paragraph 19.5 of the Senior Courts Costs Office Guide 2013) but can report on a recent decision before Master Gordon-Saker.

Claimant made an application for permission to rely on Replies served out of time. Application dismissed with costs to the Defendant. Timescales set down in rules are there to be followed. No good reason put forward for late service. The hope that the cost of drafting Replies might be avoided by a negotiated settlement was not a “good reason”.

None of this is to suggest the parties may not agree sensible extensions between themselves for service of Replies.

The lesson is that if you wish to serve Replies after the date provided for by the rules, agreement should be reached before the deadline passes. If you wait until afterwards, you will have an uphill struggle.

    23 Comments

  1. I recently attended a seminar and asked Master Campbell what his policy was – he said that he would not consider the Receiving Party barred from relying on Replies out of time as they were optional – an opinion that I don’t agree with!

    Simon Maguire

    3rd April 2014

  2. reported anywhere?

    Anonymous

    3rd April 2014

  3. Isn’t one way around this to do voluntary particulars if you are out of time ?

    Ticklemebills

    3rd April 2014

  4. It is interesting, isn’t it: if you are late in serving your bill, you get no sanction at all save as to interest. But if you are a day or two late with PODs or replies you face Mitchell in its full horror. I have seen a case where a party served his bill a YEAR late. No substantive sanction. The PP was then a couple of days late with his PODs, and had to circumvent Mitchell to get the DCC for over 500K set aside (and only succeeded in doing so because he was lucky enough to get an anti-Mitchell judge (and to instruct me, natch…)) The complete asymmetry of outcomes depending on whether equally culpable breaches relate to rules with or without automatic sanctions is one of the less remarked problems created by Mitchell, but it can lead to rank injustice and, with a different judge, my client could easily have found.

    As to Master G-S, what did he say to the point that (unless it was a provisional assessment) the RP could simply have read out from his replies at the hearing – in which case, the only issue this goes to is surely the costs of preparing the replies?

    Jacques Hughes

    3rd April 2014

  5. I’m just waiting for the first brain surgeon to come out with “but they’er optional!”

    Truly Elephant Costs Professional

    3rd April 2014

  6. *they’re…

    Truly Elephant Costs Professional

    3rd April 2014

  7. I’d like to see a full transcript of the reasons given by the Master. Were there some other factors that influenced his decision?

    If the Claimant was not allowed to rely on his replies, did this mean that he could not advance the same points orally at the detailed assessment hearing? If so, then in effect the Master appears to have applied the penalty prescribed by CPR 47.9(3)for late service of points of dispute – preventing the defaulting party from being heard further in the detailed assessment proceedings without the permission of the court – to this failure to do something that was only ever optional.

    Peter Burdge

    3rd April 2014

  8. As mostly receiving party based, I’m finding that whenever I request extensions for service of PORs, they are often refused. The only exception? GWS, naturally!

    If an extension is requested (on the basis that offers are being exchanged), refused and PORs subsequently served out of time. Does anyone think that this would be enough to justify late service at a later application to have the PORs struck out?

    John Hartson

    3rd April 2014

  9. So this is “mitchell” settling down and the application of common sense

    Can see the merit if it was day before a hearing as an example, but what if a day or so late?

    I do wholeheartedly agree that in this day and age an extension must be sought though just to protect one’s self

    Anonymous

    3rd April 2014

  10. Jacques, its nonsense and the absurdity of the situation mirrors the issue with 32.5 statements

    If you are late in serving N251 you can still recover, but not for the period that you delayed for, however if no 32.5 statement, when the PP knows there is an additional liability that they will be paying for, you are faced with no recovery whatsoever

    They keep banging on about proportionality but where is the proportionality in their sanctions / decisions

    abcde

    4th April 2014

  11. @John Hartson

    I also request an extension to allow for negotiations and have been refused on a couple of occasions, including where the paying party’s only offer is a PD8.3 offer in the sum of £nil.

    The result? I prepare the replies in time anyway, and then recover them as costs of assessment. Good for me, but a waste of money for the paying party.

    A nonny mouse

    4th April 2014

  12. What I don’t understand is how some firms are apparently preparing long detailed Replies, even though they have been clearly abolished (except for points of principle and concessions) yet most paying parties are apparently not bothering to apply to strike out the Replies or even argue that they should not have to pay the costs of preparing Replies in the costs of assessment. Weird!

    The argument as to whether or not it is “fair” that Replies have been abolished (particularly in cases which will be provisionally assessed) is a completely different argument. The fact is they HAVE been abolished perfectly clearly in the rules, whether we like it or not.

    Some judges are even unaware of this entirely until you tell them! Once, after a hearing had been requested, the judge ordered that Replies be served and said that any items which did NOT have a reply would be reduced/disallowed in accordance with the corresponding Point of Dispute. That judge really needs to open the rule book!

    Richard

    4th April 2014

  13. @ Peter Burdge

    As you anticipate, I did indeed say that the receiving party could make the same points orally as were in the replies. The only real issue was the cost of preparing replies served late, which do not fulfil their purpose of narrowing the issues at the earliest opportunity.

    Master Gordon-Saker

    4th April 2014

  14. Simon, can we have the case citation? It may only be first instance but is useful nevertheless.

    Cost monkey

    4th April 2014

  15. The person who doesn’t grant an extension is going to find that it bites them in the arse on another occasion. Be sensible people !

    Ticklemebills

    4th April 2014

  16. Sanction for delay has long been discussed and the remedy of interest penalties only can be overcome if the paying party commences detailed assessment proceedings themselves. See http://www.bailii.org/ew/cases/EWHC/Costs/2003/9016.html
    Also reported in ALCD journal December 2003

    Ian Smith

    4th April 2014

  17. I am very grateful to Master Gordon-Saker for his clarification.

    Peter Burdge

    4th April 2014

  18. On the full replies point, I thought Master Haworth had recently indicated his view that full replies should really be prepared in order to protect your client’s position, particularly on provisionally assessed bills. If so, my thinking would be that you may lose the additional cost of preparing the full replies but this may be offset by the greater recovery.

    ACL Student

    4th April 2014

  19. @ Richard

    Since when had replies been abolished? Certainly, detailed replies which make repetitive counter-arguments have been discouraged but they haven’t been abolished otherwise there wouldn’t be a CPR 47.13 concerning replies.

    As to the issue with replying to everything, there is nothing in the rules which say that counter-proposals cannot be made. In fact it is encouraged with the very mention of concessions.

    I have seen provisional assessments where the judge has actually written on the precedent G “in the absence of a reply from receiving party, I assess this item as per the paying party’s offer” with the same being repeated throughout the entire bill.

    John Hartson

    4th April 2014

  20. Case details: Georgia Ottway -v- London Eastern Railway Ltd & London Overground Rail Operations Ltd (SCCO Ref: AGS/1304937), 11 March 2014, SCCO

    Simon Gibbs

    4th April 2014

    • Is there a link to this case, I can’t find it online ?

      thomas

      11th April 2018

      • No. It was just a short ex tempore decision.

        Simon Gibbs

        11th April 2018

  21. John Hartson –

    Clearly you didn’t read my full comment. Replies are now limited to concessions or replies to points of principle. CPR 47.13 PD 12.1. Right there in black and white. So that means that in the vast majority of cases, Replies are NOT permissible – i.e. abolished. That’s what I said in my previous comment.

    I also specifically acknowledged that many judges don’t know the rules and gave an example myself.

    Richard

    15th April 2014

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