Maidens v Building Supplies Distribution Ltd: Interim Applications in Provisional Assessment [2026] EWCC 25

Detailed Assessment — 2026-04-15

The court retained jurisdiction to hear procedural applications before provisional assessment, but dismissed an attempt to determine Ainsworth points separately from the streamlined paper process.

Overview

Court: County Court at Derby

Judge: District Judge Davies, Regional Costs Judge

Date: 15 April 2026

Citation: [2026] EWCC 25

In Maidens v Building Supplies Distribution Ltd, the court confirmed that it has jurisdiction to determine a procedural application before a provisional assessment, but warned that the jurisdiction should be exercised cautiously. The provisional assessment regime is intended to resolve lower-value costs disputes in a single, proportionate process. It should not ordinarily be interrupted by preliminary applications seeking rulings on the adequacy of points of dispute or replies.

The defendant’s application was dismissed. It was ordered to pay the claimant’s costs of the application, summarily assessed at £11,220.

Background

The underlying personal injury claim settled by acceptance of a Part 36 offer for £43,000. The claimant served a bill of costs for £56,460 with 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.

The points of dispute included an itemised Excel schedule. The defendant relied upon that schedule to provide the particularisation required by Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178. In the replies, the claimant argued that the schedule could not properly be used at provisional assessment and also raised more conventional objections to the particularity of individual points.

By the hearing, the claimant had conceded that the Excel schedule was admissible. Most of that dispute therefore fell away, although issues remained concerning points 7, 15 and 20.

The defendant sought:

a declaration that its points of dispute complied with paragraph 8.2 of Practice Direction 47; and
an order striking out the parts of the replies which alleged non-compliance with Ainsworth.

Was there jurisdiction?

The claimant argued that the application was not permitted within the provisional assessment regime. Paragraph 14.2(2) of Practice Direction 47 disapplies paragraph 13.7, which otherwise allows a party to make a Part 23 application during detailed assessment proceedings. If the defendant wanted preliminary issues decided, the claimant said it should have applied under CPR 47.15(6) for the matter to proceed to a full detailed assessment.

District Judge Davies rejected the submission that the court lacked jurisdiction. Paragraph 13.7 did not prohibit applications altogether. The court retained its general case management powers under CPR 3.1(2)(k) and (m), including the ability to exclude an issue from consideration and take any step necessary to further the overriding objective.

The judge drew a useful distinction. The provisional assessment rules govern the method by which costs are assessed, but they do not remove the court’s general power to address a discrete procedural issue.

Why the court declined to intervene

Jurisdiction was only the first question. The court then had to decide whether it should exercise that jurisdiction before the paper assessment. It declined to do so.

The provisional assessment regime was designed as a self-contained and proportionate method for resolving lower-value costs disputes. It was intended to avoid the expense and proliferation of interim hearings which had affected detailed assessment proceedings before the Jackson reforms.

Disputes about quantum, reasonableness and proportionality are ordinarily presented through the bill, points of dispute and replies. A Costs Judge assessing the matter on paper is equipped to evaluate both the substance of the individual items and the way the parties have pleaded their positions.

The claimant’s concession about the Excel schedule was important. The remaining arguments concerned whether three individual points contained sufficient detail. Those were evaluative issues for the judge undertaking the provisional assessment. The defendant’s application would have pre-empted that exercise without any demonstrated necessity.

At paragraph 23, the court warned against encouraging parties to “litigate issues by instalments”. Preliminary challenges could undermine the streamlined process, increase costs disproportionately and create additional demands on court resources.

The application was not an abuse of process in the strict sense. The original dispute about the schedule had not been plainly unarguable. However, continuing with the application after the concession made it disproportionate.

The order

The defendant’s application was dismissed. The claimant was directed to serve amended replies by 6 May 2026 and to re-file its N258 by 27 May 2026.

The defendant was ordered to pay £11,220 for the claimant’s costs of the application. That figure is a striking illustration of the cost risk created by satellite litigation within a regime intended for bills not exceeding £75,000.

The relationship with Ainsworth

The judgment does not decide whether points 7, 15 and 20 complied with Ainsworth. Nor does it establish a general rule that an appended spreadsheet will always cure deficient points of dispute. The claimant’s concession meant the broader admissibility issue did not require determination.

The decision is procedural. It says that qualitative arguments about the adequacy of particular points will ordinarily be resolved by the judge conducting the provisional assessment, using the documents already provided for that process.

Parties should therefore avoid reading Maidens as approval of any particular drafting format. Paragraph 8.2 of Practice Direction 47 and Ainsworth still require points of dispute to identify concisely the nature and grounds of each dispute. A generic objection followed by figures in a schedule may remain vulnerable if it does not tell the receiving party what case must be answered.

Practical implications for Costs Lawyers

For receiving parties, the decision supports dealing with pleading deficiencies directly in replies and asking the assessing judge to determine their consequences. If a defect can be addressed through an amended document or a focused concession, that route is likely to be more proportionate than an interim application.

For paying parties, an application before provisional assessment should be reserved for a genuinely discrete issue which must be decided for the assessment to proceed fairly. The evidence should explain why the paper judge cannot deal with it and why the additional hearing is proportionate.

In practice:

draft points of dispute so that the ground of challenge is clear without reconstruction by the Costs Judge;
use schedules as a tool for particularisation, not as a substitute for a pleaded case;
make and record pragmatic concessions promptly;
consider whether amended points or replies will resolve the issue;
quantify the costs of any proposed application against the value of the bill; and
preserve arguments for oral review where the paper decision produces a material injustice.

The £11,220 costs order also underlines the need to obtain clear authority before commencing satellite costs litigation.

Practical implications for Litigation Practitioners

Solicitors supervising a provisional assessment should expect the process to remain document-led. The court has power to intervene, but the default position is that disputes should be resolved within the assessment itself.

Clients should be advised that winning a preliminary procedural argument may not produce a net benefit. An application can generate a substantial additional costs exposure, delay the assessment and reduce the commercial value of the underlying recovery.

Where an opponent’s pleading is inadequate, the first steps should usually be correspondence, clarification and a proportionate reply. If an application remains necessary, it should be narrowly framed and supported by a clear explanation of why waiting for provisional assessment is not an adequate remedy.

Conclusion

Maidens confirms that the court’s general case management jurisdiction survives within provisional assessment. The more important message is one of restraint. The existence of a power to decide a preliminary issue does not mean that using it is consistent with the purpose of the regime.

Costs disputes suitable for provisional assessment should ordinarily be resolved through the bill, points of dispute, replies and the paper assessment. Parties who seek to separate out individual pleading disputes risk an adverse costs order for turning a streamlined procedure into litigation by instalments.

Citation

Maidens v Building Supplies Distribution Ltd [2026] EWCC 25. Read the full judgment at The National Archives.

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