Setting Aside Provisional Assessment: Incomplete Filing and the Duty of Candour — MH v CH

Detailed Assessment — 2026-02-06

Deputy Costs Judge Bedford held that the court's general case management power under CPR 3.1(7) can be used to set aside a provisional assessment order where the receiving party failed to file the paying party's complete points of dispute with the N258 bundle. Drawing an analogy to the duty of candour in without notice applications, the judge found that the receiving party's admitted failure to file all documents met the test of exceptional circumstances, and the provisional assessment of the £19,233.93 bill was set aside.

Overview

Date: 6 February 2026

Judge: Deputy Costs Judge Bedford

Nature of Proceedings: Application to set aside a provisional assessment order

Key Issues:

Whether CPR 3.1(7) can be used to set aside a provisional assessment order as an alternative to requesting an oral hearing under CPR 47.15(7)
The receiving party's duty of candour when filing the N258 bundle for provisional assessment
What constitutes "exceptional circumstances" for setting aside a binding provisional assessment
The relationship between general case management powers and specific costs assessment rules

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The Facts

This case arose from Court of Protection proceedings in which HHJ Hilder ordered MH to pay 50% of CH's costs by order dated 15 December 2023. CH (represented by the Official Solicitor through Irwin Mitchell LLP) submitted a Bill of Costs totalling £19,233.93.

MH, acting in person, served Points of Dispute on 22 November 2024 comprising four separate documents: a Precedent G, a Note in Relation to Points of Dispute, an annotated Bill of Costs, and a Skeleton Argument. When CH's solicitors filed the N258 bundle requesting provisional assessment on 15 April 2025, they omitted three of these four documents -- including the annotated Bill of Costs, the Note in Relation to the Points of Dispute, and MH's open offer. Only the Precedent G was included.

Deputy Costs Judge Bedford conducted the provisional assessment on 29 April 2025 without sight of MH's substantive objections. The Written Reasons contained repeated references to an inability to understand the vast majority of MH's objections. On 6 May 2025, MH applied to set aside the provisional assessment order, arguing that it had been conducted on an incomplete and misleading basis.

The hearing took place on 24 June 2025, with further written submissions in July 2025. The judge adjourned the initial hearing to obtain submissions on whether a provisional assessment constitutes a final or interim order -- a question with no binding authority directly on point.

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CPR 3.1(7) and CPR 47.15(7): Complementary, Not Exclusive

The central legal question was novel: can a party use the court's general case management power under CPR 3.1(7) to set aside a provisional assessment order, or must they proceed exclusively through the oral hearing mechanism in CPR 47.15(7)?

CPR 47.15(7) provides that any party dissatisfied with "any aspect" of a provisional assessment may request an oral hearing within 21 days. CPR 47.15(8) makes the provisional assessment binding save in "exceptional circumstances."

The receiving party argued that CPR 47.15(7) was the exclusive remedy, precluding resort to the general power. Deputy Costs Judge Bedford rejected this, finding the two rules operate complementarily:

> "CPR 3.1(1) confirms that the court's case management powers are available in addition to any specific rules."

The judge drew a critical distinction between two types of challenge. CPR 47.15(7) governs challenges to specific items within the provisional assessment -- a party dissatisfied with how a particular item was assessed can request an oral hearing on that item. But challenges to whether the assessment was conducted correctly at all -- what the judge termed a "procedural jurisdiction" question -- fall outside the scope of CPR 47.15(7) and properly engage CPR 3.1(7).

The phrase "any aspect" in CPR 47.15(7) operates within the context of items actually disputed within the assessment. It does not encompass a challenge to the fundamental validity of the assessment process itself.

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The Duty of Candour in Provisional Assessment

Deputy Costs Judge Bedford's analysis of the receiving party's filing obligations is perhaps the most significant aspect of this judgment for day-to-day practice. The judge drew an analogy to the duty of candour in without notice applications:

> "There is a plain duty upon the receiving party to ensure that the paying party's full objections are lodged when requesting the provisional assessment...Analogy can be drawn to the duty of candour within without notice applications."

This analogy is apt. Provisional assessment under CPR 47.15 is conducted on paper, without a hearing, and without the paying party's participation. The receiving party controls what the court sees. PD 47 para 14.3 imposes a mandatory obligation to file all documents comprising the paying party's points of dispute. The judge emphasised:

> "The court ought to be entitled to rely upon the candour of parties and the compliance with the mandatory filing rules when undertaking a provisional assessment."

The consequence of the omission was stark. The judge's own Written Reasons revealed "repeated references to my inability to understand the vast majority of the objections due to the inability to identify large features of the objections." In hindsight, the judge reflected:

> "There is a very strong argument to say that that was because I did not have the full points of dispute which MH intended me to consider."

The receiving party's solicitor accepted in a witness statement that the documents "should have been filed with the N258" and that their omission resulted from mistake. But the judge made clear that the characterisation of the omission as a "mistake" did not diminish its consequences.

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Exceptional Circumstances and the Set-Aside

The judge set aside the provisional assessment order on two alternative bases.

First, under CPR 3.1(7), applying the principles from Tibbles v SIG PLC [2012] EWCA Civ 518. The failure to file the requisite documents meant that a provisional assessment was not properly afoot, creating a jurisdictional defect antecedent to the assessment itself. This was not a challenge to a specific assessed item but to the validity of the entire process.

Second, even if CPR 47.15(7) were the exclusive route, the judge found "exceptional circumstances" existed within the meaning of CPR 47.15(8) because:

The receiving party accepted failing to file correct documentation
The court proceeded on a "misstated factual basis"
The omission breached mandatory rules operating in what is functionally a without notice context
Court time had been wasted on an assessment conducted without the paying party's substantive objections

The judge concluded:

> "It cannot be right, fair or just to allow a defaulting party to benefit from their default, particularly where the court has been inadvertently misled."

> "The points of dispute are axiomatically fundamental and a failure to file a complete copy of the same does, in my Judgment entirely obviate the fair and due process of the assessment."

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Removal from Provisional Assessment

Having set aside the provisional assessment order, the judge directed that the matter be removed from the provisional assessment process entirely and proceed as a detailed assessment under CPR 47.15(6). The parties were invited to provide availability dates for a one-day detailed assessment hearing.

All outstanding matters -- including a CPR 44.11 application concerning contempt of court and misconduct, whether a concluded agreement existed, and costs of the application itself -- were adjourned to the relisted hearing.

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Key Takeaways

For Solicitors

1. File everything in the N258 bundle -- The duty under PD 47 para 14.3 requires filing all documents comprising the paying party's points of dispute, without exception. It is common practice for paying parties to split objections across multiple documents (Precedent G, annotated bills, skeleton arguments). Receiving parties cannot filter which documents to include.

2. Treat provisional assessment filings like without notice applications -- The analogy to the duty of candour is a powerful one. You control what the court sees, and the court is entitled to rely on your compliance with the rules. Omissions will not be treated lightly.

3. CPR 3.1(7) is available for procedural defects -- Even in the provisional assessment context, the court retains its general case management powers. Challenges to the validity of the process (as opposed to specific assessed items) can be brought under CPR 3.1(7).

For Litigants in Person

1. Keep records of what you served -- MH was able to demonstrate precisely what documents were served as part of the Points of Dispute, which was essential to establishing that the N258 bundle was incomplete.

2. Act promptly -- MH applied to set aside within seven days of the provisional assessment order. Prompt action is important when challenging procedural defects.

3. Provisional assessment is not necessarily the final word -- Where the process has been fundamentally compromised, the court has jurisdiction to set it aside and direct a full hearing.

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Conclusion

MH v CH addresses a procedural question on which no binding authority existed, and the judgment provides valuable guidance on the interplay between the provisional assessment regime and the court's general case management powers. For costs practitioners, the most important lesson is the receiving party's duty when filing the N258 bundle: it is a duty of completeness and candour, analogous to the obligations in without notice applications.

The decision also has implications for the provisional assessment process more broadly. Where a litigant in person has served extensive points of dispute in multiple documents -- as is increasingly common -- the receiving party bears the burden of ensuring every document reaches the court. A failure to do so is not merely an administrative error; it is a fundamental defect that can vitiate the entire assessment.

The judge's willingness to set aside the provisional assessment on both CPR 3.1(7) and CPR 47.15(7) grounds provides alternative routes for future applicants, ensuring that procedural fairness is not sacrificed to procedural efficiency.

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Citation: MH v CH [2026] EWHC 238 (SCCO)

Full judgment available at: BAILII

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