How detailed should Points of Dispute be?
I am always rather mystified when I receive Replies that contain a preamble along the following lines:
“Many of the Defendant’s points of dispute do not comply with the costs practice direction as they do not state concisely (or at all in some cases) the nature and grounds of the dispute. The Defendant has chosen, in many cases, to either offer no reason for the proposed reduction or just state that the claim is ‘excessive’.
CPR Part 47.9 CPD 8.2(d) states –
Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to the Practice Direction, so far as practicable.
They must –
(b) identify specific points, stating concisely the nature and grounds of dispute.
The Claimant submits that where the Defendant has failed to state the nature and
grounds of their dispute then that dispute should be struck out and the item(s) allowed in full.”
If I understand the point being taken, it is being suggested that a Dispute that simply states the number of communications claimed, hourly rate, disbursement, time claimed, etc, is “excessive” without further detail or explanation is non-compliant with the Practice Direction.
Now, it is no doubt possible that where, for example, 10 routine communications are being claimed to obtain a single set of GP records that instead of a dispute reading: “Excessive. Reduce to 3”, this could be elaborated on:
“The Defendant respectively submits that the 10 routine communications claimed to obtain a single set of medical records is unreasonably high and disproportionate and that a competent litigator acting with all due skill and alacrity should have been able to obtain the same without the need to undertake this level of communications. To the extent to which this level of communications has been undertaken, this implies a number of chase-up communications (responsibility for which should not fall on the shoulders of the paying party on an inter partes assessment) or are of a non-fee earner, purely administrative nature. The Defendant submits a reasonable allowance would be 3 routine communications. The Court is reminded that this is a standard basis assessment and by virtue of CPR 44.3(2)(b) when assessing costs the Court will ‘resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party’.”
However, I am not sure that (other than length and cost) this adds anything to the substance of the dispute.
Nevertheless, that may just be my view of the matter. What I really struggle with is the suggestion that the shortened dispute is non-compliant with the Practice Direction, particularly where the receiving party’s Replies themselves expressly make reference to the requirement that Points of Dispute “must follow Precedent G in the Schedule of Costs Precedents annexed to the Practice Direction, so far as practicable”. I can only conclude that those who churn out these kind of Replies have never taken the time to read Precedent G.
Here it is: Precedent G.
And here are some of the example “model” disputes:
- “Rates claimed for the assistant solicitor and other fee earners are excessive. Reduce to £158 and £116 respectively plus VAT.”
- “The number of conferences with counsel is excessive and should be reduced to 3 in total (9 hours).”
- “The claim for timed attendances on claimant (schedule 1) is excessive. Reduce to 4 hours.”
- “The total claim for work done on documents by the assistant solicitor is excessive. A reasonable allowance in respect of documents concerning court and counsel is 8 hours, for documents concerning witnesses and the expert witness 6.5 hours, for work done on arithmetic 2.25 hours and for other documents 5.5 hours. Reduce to 22.25 hours.”
- “The time claimed for preparing and checking the bill is excessive. Reduce solicitor’s time to 0.5 hours and reduce the costs draftsman’s time to three hours.”
What is good enough for Precedent G is good enough for me (and the Courts).