This morning the Court of Appeal have handed down judgment on the most recent decision pertaining to the application of Ainsworth and overall compliance within Detailed Assessment. Darren Malone, of the Costs Department at 18 St John Street Chambers, offers commentary on the judgment.
Lady Justice Falk, who gave lead judgment, found that the initial decision of Deputy Costs Judge Friston, was permissible in exercising a wide discretion of case management based upon the facts presented to him during the course of Detailed Assessment proceedings. In allowing the appeal, the court have now reversed the earlier decision of Mrs Justice Hill, who had found that the earlier decision was incorrect.
Interestingly, the judgment provides clarity that strike out is not the only option and that the application of Ainsworth has somewhat moved on but shall remain fact specific to the case at hand.
The court also, critically, made several references to the need for an appeal where clarity could have been obtained from the initial hearing if any confusion arose. Specifically, the court also emphasised the importance of costs and resources, especially where Part 36 came into play and the margins were “narrow” [43].
Providing clear reasoning, the court held that the Costs Judge had not erred in principle and decisions at first instance were made under pressure and based upon information that required an immediate response. In fact, the court commended the judgment provided [39-40].
Whilst Ainsworth remains a live issue where Points of Dispute fail to abide by the requisite Rules and Practice Direction, parties have now been provided with a potential caveat that my permit more arguments as to what is reasonable when amendments are provided late on.
However, to that end, the court made it extremely clear that parties should not take the decision as carte blanche to simply do what they want. In concluding remarks, the court made the following clear:
“60. In conclusion, I would allow the appeal and restore the decision of the Costs Judge. I
should emphasise, however, that this is on the basis that this was a decision that the Costs
Judge was entitled to make within the generous ambit of his discretion. It was neither the
only decision he could make, nor was it one with which other judges would necessarily
agree.
61. Paying parties should be under no illusion that paragraph 8.2 of PD 47 requires an
Ainsworth compliant approach. They should not assume that a lenient approach will be
taken if they take a similar approach to the defendant in this case. Those who do not
comply on a timely basis risk non-compliant elements of their points of dispute being
struck out or, as a minimum, cost sanctions. Similarly, late variations by either party
under paragraph 13.10 of PD 47 risk being disallowed or permitted only on conditions,
including as to costs.”
The judgment also highlighted that the decision reached was not the only one that could have been provided and other judges may have reached a different outcome [58]. Overall, clarity on this matter has been provided but it is clear that each case will attract its own set of facts and therefore not a one size fits all approach. Costs arguments will, as ever, continue.
Darren Malone
July 2026
For more information on Darren Malone and the Costs Department at 18 St John Street, please click here to see his profile, or contact Senior Clerk Katie Brown by email or on 0161 278 1800.