Legal Cost Specialists

Points of Dispute

Oh dear.

I have been warning that costs practitioners did not appear to be ready for the post-Jackson reforms.

I have so far received two set of Replies prepared after 1 April 2013, prepared by well known costs firms. Both contained detailed responses to the disputes raised as to hourly rates, detailed responses in relation to attendances on the claimants and other parties and detailed responses to the challenges to document time, including general denials that the work claimed was unreasonable.

It appears those responsible for drafting the documents are unaware of the contents of the new Practice Direction 12.1 to CPR 47.13:

“A reply served by the receiving party under Rule 47.13 must be limited to points of principle and concessions only. It must not contain general denials, specific denials or standard form responses.”

For those unsure what might be classed as a “point of principle” look at the new Model Points of Dispute. Disputes as to hourly rates, the number of conferences with counsel or the number of fee earners attending, attendances on the claimant, document time or time claimed drafting and checking the bill are not treated as points of principle.

I’ve also received, what purported to be, a Part 36 offer in a matter where detailed assessment proceedings had been commenced before 1 April 2013.

Dear oh dear.

14 thoughts on “Points of Dispute”

  1. The model Points of Dispute state, in relation to the hourly rates state:

    “Rates claimed for the assistant solicitor and other fee earners are excessive. Reduce to £158 and £116 respectively plus VAT.”

    No reasons are given as to why it is alleged rates are excessive or even why the grade of fee earner may be inappropriate. Surely it is vital for the Costs Judge, District Judge etc to know WHY a lower rate is argued. Bearing in mind the matter will be dealt with by way of provisional assessment I can see the Court dismissing the objection because no reasons are given. Anyone know the answer?

  2. It isn’t just costs practitioners who aren’t up to speed.

    On Monday I received a Provisional Assessment Hearing Notice from Manchester County Court advising the Bill will be assessed on the papers on 18 June 2013. Notice of Commencement was served at the end of 2012.

  3. Cant see anything in the rules or PD regarding any sanction for this.

    An item being a matter of principle is surely a matter of interpretation. One mans principle is another mans minor issue

  4. Costs Draftsperson

    Each of those points in the model pods has a space for a reply, including those that are not under the heading ‘points of principle.’
    the only change is that you cannot simply say ‘maintained.’

  5. When were the detailed assessment proceedings commenced and when were the POD prepared/served?

    If the detailed assessment proceedings were commenced pre 1st april and the POD were prepared/served pre 1st april was the receiving party not correct in preparing full responses?

    I note under the new rules POD as per CPR 47.9 practice direction 8.2 are supposed to be short and to the point and follow precedent G. If the POD were not prepared in accordance with the new rules (if served pre-April)why should the receiving party prepare succinct replies which would inevitably damage their recoverability at detailed assessment?

    As a transitional provision surely it would make sense if the POD are prepared pre-April then the replies should be prepared on a pre-April basis. Otherwise it would appear to be an unfair playing field

    Disclaimer – if the POD were prepared in accordnace with precedent G, post 1st april then of course the receiving party are incorrect in preparing full detailed responses.

  6. Shame on you Simon. A ‘Lacuna Safari’ of notable proportions.

    “He who is not contented with what he has, would not be contented with what he would like to have.”

    ― Socrates

  7. The new Precedent G has no detailed objections to documents time. Neither did the last Precedent G. The guidance about being concise also seems the same. Nothing seems to have changed so why do some folk think I can no longer say which bits of the documents time are irrecoverable or too high in Points of Dispute?

  8. Tired Costs Draftsman

    PD8.2 is rather dangerous – if I give too much info in a set of pods I could get told off by the DJ, yet if I put the limited info suggested in the PD, the other side will say to the DJ that I have not fleshed out the argument and the sum should be allowed. I have this all the time in relation to arguments relating to documents time. I think that I would rather risk it with the DJ in all honesty. Also, are the paying party c/ds out there sending their open letter with their pods on pre-April Fool’s day bills. I looked at a bill yesterday that was so lacking in information that if I sent a letter, the offer would be nil. And anyway, didn’t Ku say that PDs were not rules and could be ignored ?

  9. At a recent meeting convened by my local Regional Costs Judge (and the entire constellation of his celtic based brethren) it was confirmed that where the N252 service pre-dates 01.04.13 and where the Points of Dispute are in the old format “Points in Reply” would be preferred in the old format also”. Common sense.

    Nice try Defendants but I ruddy knew it!

  10. For those spanning the two periods, CPR 47.13, PD 12.2 clears that up.

    “Whenever practicable, the reply must be set out in the form of Precedent G.”

    If they have not done PODS on Precedent G, then it is not practicable (since you should be replying on the same document) to use Precedent G.

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