The Senior Costs Judge was entitled to refuse to assess part of a law firm’s profit costs in a section 70 detailed assessment on the basis that the client’s points of dispute did not contain enough detail, the Court of Appeal has ruled.
His Honour Judge Klein, sitting as a judge of the High Court, said Master Gordon-Saker’s (pictured) decision was “robust” but within the reasonable range of case management decisions.
In Ainsworth v Stewarts Law LLP [2019] EWCA Civ 897, Kjerrulf Ainsworth instructed London firm Stewarts Law to act in a dispute with his former partner but terminated the retainer because he was not happy with its work. He pursued a section 70 assessment of the firm’s costs, at which Senior Costs Judge Gordon-Saker assessed the costs payable at £200,706, including £18,000 for the costs of the detailed assessment proceedings.
He refused to assess the firm’s profit costs of work done on documents on the basis that Mr Ainsworth’s points of dispute did not contain enough detail. Mr Ainsworth appealed.
HHJ Klein found that the claimant’s points of dispute tried to “shift the burden of proving the reasonableness of each and every item and so their recoverability onto the defendant”. He also made two broad generic complaints – that the time spent on each item was excessive and that work was duplicated.
Before Master Gordon-Saker, the claimant’s representative suggested that the claimant actually only wanted to challenge the larger items in the bill, although he accepted that this was not clear from the points of dispute.
HHJ Klein said: “The master was entitled to conclude that neither the defendant nor the court knew the case which the defendant had to meet on the individual items in the schedule.” The master also had only half a day to deal with the challenges, and HHJ Klein said it was “likely, at best, that the hearing would have had to be adjourned part-heard, in my view, unnecessarily. It follows, therefore, that in drafting the points of dispute, the claimant did not further the overriding objective”.
Citing paragraph 8.2 of PD 47, he said the points of dispute were not “to the point”, did not summarise all of the particular objections to the specific points which the claimant claimed to advance at the hearing, and the defendant did not know or know sufficiently the case it had to meet.
“In deciding what should happen at the hearing before him, the master had or was entitled to make such case management decisions as furthered the overriding objective which, as I have indicated, includes ensuring the parties were on an equal footing and ensuring that only an appropriate share of the court’s resources were allocated to the proceedings. In particular, the hearing.
“There were a range of options open to the master in practice which might have furthered the overriding objective from. At one extreme, making no order and allowing the claimant to conduct the hearing in whatever way he liked for as long as he liked. The other extreme, which option the master took, namely to summarily dispose of the claimant’s objections to work done on documents.”
He said Master Gordon-Saker’s decision might only be illegitimate in the sense of not furthering the overriding objective, if it was not a proportionate response to the claimant’s failure himself to further the overriding objective.
But HHJ Klein gave seven reasons why it was proportionate, including that the hearing was fixed about five months before it took place, and that the claimant knew about the defendant’s complaints about the points of dispute at about the same time but did not amend his points of dispute.
“The master’s decision was a robust decision but… I am not satisfied that it did not further the overriding objective.”
The only other issue was whether the claimant was shut out from orally advancing a point or case he claims he was entitled to advance.
HHJ Klein said he was not: “I do not accept that the claimant had the unrestricted right to litigate the detailed assessment proceedings, just as any other litigant who has a claim with a real prospect of success does not have an unrestricted right to litigate such a claim…
“Such rights such a litigant has, and the claimant in this case had, to access to the court is, and in this case was, qualified by the obligation or the entitlement of the court to case manage the proceedings in issue consistently with the overriding objective. Once that qualification is borne in mind, and bearing in mind too the conclusions I have already reached, the entitlement grounds of appeal do not assist the claimant or change the conclusion I have otherwise reached.
“Put in the language of article 6 of the European Convention of Human Rights, I cannot say that the claimant did not have a fair hearing within a reasonable time before an independent and impartial tribunal established by law. It follows therefore that the appeal is dismissed.”