Ward v Rai: Late Points of Dispute and the Costs Judge's Discretion [2026] EWCA Civ 816

Detailed Assessment — 2026-07-02

In Ward v Rai, the Court of Appeal in 2026 considered whether a Costs Judge had been entitled to preserve a defective point of dispute and admit a late schedule during detailed assessment, rather than strike out the challenge. The decision in [2026] EWCA Civ 816 confirms both the specificity required by Practice Direction 47 and the breadth of the first instance court's case management discretion.

Overview

Date: 2 July 2026

Judge: Lady Justice Falk, with Lord Justice Jeremy Baker and Lord Justice Foxton

Court: Court of Appeal (Civil Division)

Citation: [2026] EWCA Civ 816

Nature of Proceedings: Second appeal concerning case management decisions made during detailed assessment

Key Issues:

Whether a Deputy Costs Judge was entitled to refuse to strike out a non-compliant point of dispute
Whether a paying party could rely on an annotated schedule served shortly before the detailed assessment hearing
The limits of appellate intervention in discretionary case management decisions
The consequences of failing to comply with paragraph 8.2 of Practice Direction 47

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The Facts

In Ward v Rai, the Court of Appeal in 2026 considered whether a Costs Judge had been entitled to preserve a defective point of dispute and admit a late schedule during detailed assessment, rather than strike out the challenge. The decision in [2026] EWCA Civ 816 confirms both the specificity required by Practice Direction 47 and the breadth of the first-instance court's case management discretion.

The underlying personal injury claim arose from a road traffic accident on 18 September 2019. Liability was admitted, subject to causation and quantum, and the claim settled in January 2023 when Mr Paul Ward accepted a Part 36 offer of £546,984. He commenced detailed assessment proceedings on 3 August 2023.

Item 39 of the bill claimed 134.1 hours for work on documents, set out in a 24-page schedule, at £38,819.50 plus VAT. Of that time, 126.7 hours were claimed at Grade A rates. The total bill, including counsel's fees and disbursements, was £129,196.50 including VAT.

The defendant's Point 23 challenged the documents claim through several general criticisms and proposed limiting the time to 68 hours and 12 minutes. It also said that the defendant would rely on an annotated schedule of objections, but that schedule was not served with the points of dispute. The claimant's reply complained that no individual entries or specific grounds had been identified, although it answered the general criticisms and offered to accept 130 hours.

The missing schedule was filed and served at about 4.45 pm on 31 July 2024, shortly before the two-day assessment listed for 5 and 6 August. It identified individual disputed entries for the first time and advanced offers of 58.5 hours as the defendant's primary case and 58.8 hours as a fallback. Deputy Costs Judge Friston refused to strike out Point 23, permitted reliance on the late schedule and adjourned the assessment to a third day.

At the adjourned hearing, the Costs Judge assessed about 10 per cent of the entries line by line and dealt with the remainder on a broader basis accepted by the parties. The bill was assessed at £89,032.62 plus interest. The claimant had failed to beat the defendant's Part 36 offer of £100,000, with consequential effects on the costs of the assessment.

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The Appeals

On the first appeal, Hill J set aside the Costs Judge's decisions, struck out Point 23 and refused permission to rely on the annotated schedule. Although she rejected the individual complaints advanced through the grounds of appeal, she accepted an overarching submission that the Costs Judge had failed to give sufficient weight to paragraph 8.2(b) of Practice Direction 47, Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178 and the overriding objective.

The defendant's appeal to the Court of Appeal was a second appeal against a case management decision. The central question was therefore not what decision the appellate court would itself have made, but whether the Costs Judge's decision was one properly open to him.

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Key Holdings

1. Points of Dispute Must Identify What Is Challenged and Why

Paragraph 8.2 of Practice Direction 47 requires points of dispute to be short and focused. They must identify general points or matters of principle and, separately, identify specific points while stating concisely the nature and grounds of dispute.

The Court of Appeal endorsed the approach in Ainsworth v Stewarts Law LLP, where the court explained that points of dispute must enable the parties and the court to determine precisely what is disputed and why. Point 23 was plainly incomplete because it referred to an annotated schedule that had not been supplied. Lady Justice Falk said at [47] that the Costs Judge had sufficiently clearly proceeded on the basis that Point 23 was non-compliant.

The decision therefore does not dilute the requirements of paragraph 8.2. Its significance lies in the distinction between identifying non-compliance and deciding what procedural consequence should follow.

2. Non-Compliance Did Not Compel Strike-Out

The Costs Judge had power to strike out Point 23, but he was not obliged to exercise it. He considered that the original point would have permitted a broad assessment and had given the claimant a sufficient general understanding of the case. Both parties knew that a further schedule should exist, yet neither ensured that it was available in good time. The claimant had also anticipated and answered many of the general criticisms.

The schedule was served unacceptably late, but the Costs Judge did not regard it as an ambush. He concluded that an adjournment was inevitable and that the court would be assisted by the schedule. He therefore admitted it reluctantly, subject to a costs sanction.

At [58], Lady Justice Falk held:

> "While it would clearly have been open to the Costs Judge to strike out Point 23 and not permit reliance on the annotated schedule, and another judge might have taken that course, he was not obliged to do so. It was open to him to impose a costs sanction instead, as he made clear that he would."

Practice Direction 47 paragraph 13.10 gives the court a wide discretion when a party varies a bill, points of dispute or reply. The variation may be disallowed or permitted on conditions, including conditions concerning costs caused or wasted. Celtic Bioenergy Ltd v Knowles Ltd [2022] EWHC 1223 (QB) demonstrated that a late document can become "just too late", but it did not create a restriction requiring refusal in this case.

3. The High Court Exceeded the Proper Appellate Role

The Court of Appeal applied the established test in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743. An appellate court may interfere if the first-instance judge misdirected himself in law, omitted a relevant factor, considered an irrelevant factor or reached a decision outside the generous ambit within which reasonable decision-makers may disagree.

Lady Justice Falk stressed at [35] that the question was whether the decision

could properly have been made, not whether the appellate court would itself

have decided the issue differently.

Although Hill J had correctly directed herself to those principles, her decision strayed beyond their limits. The Costs Judge had made no error of principle, had not failed to consider relevant matters and had reached a decision within the proper ambit of his discretion. Questions about the weight attributed to compliance and other case management considerations were primarily for him.

The Court also emphasised the practical setting in which such decisions are made. The Costs Judge delivered an ex tempore ruling under pressure at the end of the second hearing day. An appellate court cannot fully recreate the position confronting the first-instance judge and must not dissect an unreserved judgment as if it were a reserved decision.

4. The Third Hearing Day Was Not Caused Solely by the Default

Hill J had reasoned that the late schedule necessitated the third day. The Court of Appeal found that this started from the wrong point. Had the annotated schedule accompanied the original points of dispute, a three-day hearing would still have been required because the remaining issues and the detailed documents dispute could not have been completed in two days.

The relevant consequences of the default were instead the claimant's inability to use the schedule when preparing its reply and the inconvenience and additional expense caused by splitting the hearing. There was also potential disadvantage in making or evaluating Part 36 offers, although the claimant could have chased the promised schedule or protected its position through the terms of an offer.

This distinction mattered because it undermined a central premise of the first appeal decision. It also illustrated why case management consequences must be assessed against what would have happened if the rules had been followed, not merely against the procedural outcome produced after a breach.

5. The Costs Judge's Decision Was Restored, but Leniency Is Not Assured

The Court of Appeal allowed the appeal and restored the Costs Judge's decision. Lady Justice Falk carefully confined that result at [60]:

> "It was neither the only decision he could make, nor was it one with which other judges would necessarily agree."

The closing warning at [61] is important. Paying parties must adopt an Ainsworth-compliant approach to paragraph 8.2. A party that does not comply in time risks the defective part of its points of dispute being struck out or, at minimum, a costs sanction. Late variations under paragraph 13.10 may likewise be refused or admitted only on conditions.

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Practical Implications

For Costs Lawyers

1. Particularise points of dispute from the outset. Identify the entries challenged and state concisely why each challenge is made. A promise to provide a later schedule does not make incomplete points compliant.

2. Serve supporting schedules with the points. A schedule containing the substance of an item-by-item challenge should accompany the points of dispute, not arrive immediately before assessment.

3. Do not treat Ward as a licence for late evidence. The outcome depended on the Costs Judge's broad discretion and the particular circumstances. Another judge could properly have struck out Point 23.

4. Address the real consequences of any default. When arguing for or against relief, identify the preparation, hearing time, settlement opportunity and costs actually affected by the breach, comparing them with the position had compliance occurred.

5. Consider conditional solutions. Paragraph 13.10 permits the court to admit a variation subject to conditions. Costs sanctions, adjournment costs and restrictions on reliance may offer proportionate alternatives to strike-out.

For Litigation Practitioners

1. Chase a promised document promptly. The paying party remains responsible for compliance, but silence by the receiving party may become relevant when the court evaluates fairness and case management.

2. Protect settlement positions. Missing particulars can impair the assessment of Part 36 offers. Practitioners should seek the information promptly and consider drafting offers that account for unresolved procedural issues.

3. Raise deficiencies in an ex tempore judgment immediately. At [41], the Court repeated that advocates should draw material omissions, ambiguities or inadequate reasons to the judge's attention. Prompt clarification may avoid an unnecessary appeal.

4. Treat a case management appeal as a last resort. The appellate court will not substitute its preferred solution merely because it disagrees with the first-instance decision. The proposed appeal must identify a recognised error in the exercise of discretion.

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Conclusion

Ward v Rai preserves strict compliance with Practice Direction 47 while confirming that the consequence of non-compliance remains a matter of judicial discretion. Point 23 was incomplete and the supporting schedule was served unacceptably late, but strike-out was not inevitable. The Costs Judge was entitled to admit the schedule and address the default through case management and costs.

For costs practitioners, the practical message is deliberately two-sided. Paying parties must provide focused, item-specific points in time, and late attempts to cure defects carry a real risk of strike-out or sanctions. At the same time, appellate courts must respect the generous ambit of a Costs Judge's discretion when deciding how fairness, proportionality and efficient assessment should be achieved.

This Mackenzie Costs analysis highlights the safest course: comply fully at the outset, respond promptly to missing material and reserve appeals for decisions that disclose a true error of principle.

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Citation: Paul Ward v Gagandeep Rai [2026] EWCA Civ 816

Full judgment available at: National Archives

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