Robert Maidens v Building Supplies Distribution Limited

This is my ex tempore judgment relating to an adjourned interim application (transferred to me as Regional Costs Judge from the County Court at Lincoln), made in the context of a costs dispute which falls within the provisional assessment regime under CPR Part 47. The application made by the Defendant seeks the court’s determination of issues relating to the costs claim in advance of provisional assessment.

I have received and considered skeleton arguments from both advocates, which were provided this morning. I have also considered the authorities relied upon and have had access to the Points of Dispute and Replies.

The underlying claim is a personal injury claim which settled for £43,000 on a part 36 basis. The Claimant’s costs lawyers served a bill of costs for £56,460 and notice of commencement on 19 February 2025 The Defendant served Points of Dispute on 5 June 2025 and the Claimant served Replies on 26 July 2025.

A central submission in the Replies relates to the Defendant’s reliance on an itemised Excel spreadsheet appended to the Points of Dispute, intended to make the Points of Dispute Ainsworth compliant. The Claimant objected to that reliance, contending that it could not be properly used at provisional assessment. There are also more routine objections as to lack of Ainsworth particularisation, which appear in both the Points of Dispute and are countered in the Replies.

The overarching feature of the dispute (i.e.the Defendant’s reliance on the Excel spreadsheet) has now been conceded by the Claimant. To that extent, save for the Replies to Points 7, 15 and 20, the Replies on that use-of-spreadsheet issue fall away.

The Defendant seeks a declaration that the Points of Dispute are CPR compliant with CPR PD47 paragraph 8.2 and also seeks a strike out of those parts of the Replies whixh assert that the Points of Dispute are non-compliant with Ainsworth.

The Claimant’s submissions can be summarised as follows. First, this is a provisional assessment case yet to be determined by the Court. The procedure is deliberately streamlined and either party may seek an oral review following provisional assessment on paper. It is submitted that there is no mechanism within the provisional assessment regime for the bringing of preliminary applications. Reliance is placed on PD 47 paragraph 14.2(2), which excludes paragraph 13.7 (which would otherwise permit applications under Part 23). It is therefore submitted by the Claimant that there is no scope for a Part 23 application within the provisional assessment process, save where expressly provided for.

It is submitted that, if the Defendant wished to pursue such issues, it should have sought to remove the matter from the provisional assessment regime and applied for a full detailed assessment under CPR 47.15(6). On that basis, the Claimant contends that the present application is an abuse of process and on that ground alone should be dismissed.

In the alternative, if the Court is not with the Claimant on that procedural point, it is submitted that the Defendant has in any event failed to comply with Ainsworth in relation to Points 7, 15 and 20.

The Claimant now concedes the admissibility of the Excel schedule. It is said that amended Replies will now be filed and served by the claimant and that this could have been done without the need for court determination on an interim application. It is further submitted that compliance with Ainsworth is a qualitative issue for the judge conducting the provisional assessment and requires consideration of individual entries in the bill.

It is also said that, even if the Court is not with the Claimant on Ainsworth, alternative submissions and concessions are already contained within the Replies, such that the provisional assessment can proceed as normal on paper.

To summarise Mr Hood’s submissions, it is said that determining discrete issues in advance would interfere with the provisional assessment regime and set an undesirable precedent. It would fetter the discretion of the costs judge, particularly if that judge were not the same judge as is dealing with this application, and may impact the parties’ decisions as to whether to seek an oral review. It is also submitted that the Defendant is, in substance, seeking to censor the Claimant’s criticisms of the Points of Dispute, which is inappropriate.

The factual and procedural background has narrowed since the application was first foreshadowed in the initial skirmishing. In particular, the Claimant now accepts that the Excel schedule is admissible for the purposes identified in Ainsworth. Although I am not now required to determine that issue, I consider that concession to be a pragmatic and sensible one.

The first question is whether the Court has jurisdiction even to hear this application. In my judgment, it does. I accept the submissions made by Mr Hughes in paragraphs 8 to 14 of his skeleton argument. Paragraph 13.7 of PD 47 does not operate as a prohibition on applications per se. The Court’s case management powers under CPR 3.1(2)(k) and (m) remain available. I accept Mr. Hughes’s analysis that the provisional assessment regime governs the method of assessment, but the Court retains its general powers to deal with discrete procedural issues.

The question then is whether the Court should exercise its discretion to determine the application at this stage. In my judgment, it should not and these are my reasons.

The provisional assessment regime was deliberately designed, following the recommendations of Sir Rupert Jackson, to provide a self-contained and proportionate mechanism for resolving lower-value costs disputes. It is intended to avoid the proliferation of interim hearings and the expense which previously often beset detailed assessments.

The regime proceeds on the set basis that disputes as to quantum, reasonableness and proportionality are to be addressed through Points of Dispute and Replies, and that judges assessing costs on the papers are well equipped to deal with issues relating to the presentation and substance of bills and Points of Dispute and Replies.

As a starting point, the Court should approach applications to intervene prior to formal provisional assessment with caution. The rationale for this would be to allow such applications risks undermining the very purpose of the provisional assessment regime.

Whilst I accept that there is no absolute procedural bar to such applications, the existence of jurisdiction does not mean that it should be exercised. The Claimant’s concession on admissibility of the Excel spreadsheet is significant. What now remains are specific Ainsworth disputes in relation to Points 7, 15 and 20. Those issues, insofar as they concern the level of detail or the merits of individual items, are matters for the judge conducting the provisional assessment.

The Defendant seeks, in substance, to pre-empt that evaluative exercise. That is precisely what the provisional assessment regime is designed to avoid. In light of the spreadsheet concession, there is a structured mechanism available to resolve the remaining issues, and there is no demonstrated necessity for the Court to intervene at this stage.

Mr Hughes invites me to determine the remaining Ainsworth issues now, on the basis that the parties are before the Court. I decline to do so as a matter of principle.

Costs have already been incurred on this application, and they are not insignificant. It is not inevitable that there will be an oral review. The Court must have regard to the need to deal with cases at proportionate cost, which applies with particular force in costs litigation.

To entertain this application in circumstances where the dispute is suitable for provisional assessment, particularly in light of the concession made, would set an unwelcome precedent. It would encourage parties to bring interim challenges routinely, seeking to litigate issues by instalments which the rules intend to be resolved in a single, streamlined process. That would undermine the provisional assessment regime, increase costs disproportionately, and place additional burdens on court resources.

That would not be consistent with the overriding objective.

I would add for completeness given the claimant’s submissions on the point that that I am not persuaded that the application when mooted crossed the line into an abuse of process in the strict sense, given that I have accepted Mr. Hughes’ submissions on jurisdiction. The issue over admissibility of the Excel spreadsheet was not plainly unarguable when foreshadowed in correspondence, but its continued pursuit following the concession (before the application was issued as Mr. Hood pointed out) as to admissibility of the Excel spreadsheet schedule renders it disproportionate.

The Claimant’s costs lawyers will, as they indicated, file amended Replies to reflect the Excel spreadcheet concession. In those circumstances, the Defendant’s application is dismissed.

That is my judgment. I am grateful to both advocates for their concise written submissions and their clear and helpful oral argument, which have assisted the court.

The Defendant’s application is dismissed.

The Claimant shall file and serve Amended Points of Reply by 4.00 p.m. 6 May 2026

The Claimant shall re-file its N258 in the County Court at Derby by 4 p.m. 27 May 2026.

The Defendant shall pay the Claimant’s costs of the application, summarily assessed in the sum of £11,220.00, such sum to be paid by 4.00 p.m. 6 May 2026