MH v CH [2026] EWHC 238 (SCCO)

[2026] EWHC 238 (SCCO)Case No 14030967SCCO Reference: SC-2025-BTP-000339
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Venue Thomas More Building, Royal Courts of Justice,Date 6 February 2026
London WC2A 2LL
Before
DEPUTY COSTS JUDGE BEDFORD
Between
MHApplicantCHFirst Respondent
Mr Christopher Moss (instructed by Irwin Mitchell LLP) for First RespondentMH Appeared in person for in personHearing Hearing date: 24 June 2025Further submissions: 23 July 2026
Approved JudgmentThis Judgment was handed down remotely at 3.00pm 6 February 2026 by circulation to the parties or their representatives by email and by release to the National Archives.Costs Judge Bedford:
[1]This Judgment engages with the atypical position where a party applies to set aside a Provisional Assessment Order within 7 days pursuant to CPR 3.1(7) as an alternative to requesting an oral hearing pursuant to CPR 47.15(7)(8). That question itself operates within highly atypical factual circumstances.[2]I am informed by Counsel that there is no binding authority, or indeed any authority, on this point. Consequently, I determined that a written judgment may be of some utility, irrespective of the atypical nature of both the issue and the wider factual context.

BACKGROUND:

[3]By way of application notice dated 6 May 2025 MH applies to set aside the provisional assessment order made on 29 April 2025 [“the PA Order”] pursuant to CPR 3.1(7) [“the Application”][4]The substantive dispute between these parties has a long and convoluted history, not all of which is relevant. I do not intend to do disservice to the parties by only setting out herein the facts germane to this application.[5]Put succinctly: the dispute arises from proceedings in the Court of Protection. By way of Order dated 15 December 2023 HHJ Hilder ordered MH to pay 50% of CH’s costs.[6]A Bill of Costs was prepared totalling £19,233.93 and split into three parts. That was served on MH on 1 November 2024.[7]It is an accepted fact that on 22 November 2024 MH served his Points of Dispute by email which comprised of four documents:a. Precedent G;b. Note in Relation to Points of Dispute;c. Annotated Bill of Costs;d. MH’s Skeleton Argument from a prior application in the Court of Appeal.[8]Replies were served on 13 December 2024.[9]On 15 April 2025 CH lodged the N258 Bundle with the Court. Within the witness statement of Mr Cruise dated 21 May 2025 prepared in response to this Application, it is accepted that:a. [§22] He omitted the annotated Bill of Costs or the Note in Relation to the Points of Dispute from the documents filed with the N258;b. [§25] These documents should have been filed with the N258;c. [§26] The omission of these documents was due to mistake on Mr Cruise’s part.[10]Additionally, CH did not file the open offer made by MH.[11]Unbeknownst to me, I conducted the Provisional Assessment on 29 April 2025 without sight of the entire documents that ought to have been filed. The decisions on the Provisional Assessment were encapsulated into my usual Written Reasons on Provisional Assessment document. A pervasive feature of that document is the repeated references to my inability to understand the vast majority of the objections due to the inability to identify large features of the objections.[12]I now understand that difficulty to entirely emanate from the absence of the complete set of documents.[13]The PA Order was sent out on 29 April 2025.[14]On 6 May 2025 MH issued and served the Application.[15]Correspondence ensued with the Court as to whether there ought to be an oral hearing as opposed to this application. MH was steadfast in his decision that he wished for this Application to be considered as opposed to any request for an oral review.[16]Consequently, the Application was listed before me on 24 June 2025 wherein CH was represented by Mr Moss of Counsel and MH self-represented. During that hearing, an issue arose engaging with whether a provisional assessment was a final or interim order prior to the expiry of the 21-day period expressed within CPR 47.15(7). Given the involved nature of that question, I determined the fair process was to adjourn and order written submissions on the issue from both sides.[17]CH filed their written submissions on 23 July 2025. MH filed written submissions on 28 July 2025. I am grateful to both for their assistance.

THE APPLICATION:

[18]The Application notice MH seeks to set aside the PA Order on the grounds that the PA itself is “null and void” on the basis that the N258 Bundle placed before the Court on 29 April 2025 excluded:a. The Open Offer in accordance with PD 47 para 14.3;b. The full Points of Dispute in accordance with PD 47 para 14.3.[19]The Application also seeks :a. To determine issues of whether these failures amount to either contempt of court or misconduct pursuant to CPR 44.11. For the avoidance of doubt, the appropriate time to determine those matters is at the conclusion of the assessment itself and so I adjourn those aspects until such time.b. To determine whether a concluded agreement is present in respect of the costs by way of a prior payment made. For the avoidance of doubt, this is an issue that is properly construed as an assessment question and thus I do not resolve it properly within the confines of this Application and it is adjourned until the assessment itself, with full ability of CH to advance all defences outlined in their skeleton arguments and written submissions.[20]In support of the Application, MH’s written submissions draw analogy with various types of interim order provisions throughout the CPR which provide a set aside power in circumstances where an order has not been made final, along with various provisions which expressly allow for set aside where the final order was not regularly made. Importantly, he draws analogy with the ability to set aside default costs certificates pursuant to CPR 47.12(1) where the requesting party was not entitled to obtain it.[21]Whilst of some utility, these comparables are not determinative of the application given that this is a question of interpretation. The height of this utility is to provide a comparable test across the competing interpretations to ensure cohesiveness across the body of civil procedure rules.

THE LAW:

[22]The specific procedural code governing provisional assessments is to be found in CPR 47.15 and the associated PD47 para 14, which provide, in so far as relevant, as follows: CPR 47.15:(1) This rule applies to any detailed assessment proceedings commenced in the High Court or the County Court on or after 1 April 2013 in which the costs claimed are the amount set out in paragraph 14.1 of the practice direction supplementing this Part, or less.(2) In proceedings to which this rule applies, the parties must comply with the procedure set out in Part 47 as modified by paragraph 14 Practice Direction 47.(3) The court will undertake a provisional assessment of the receiving party’s costs on receipt of Form N258 and the relevant supporting documents specified in Practice Direction 47.(4) The provisional assessment will be based on the information contained in the bill and supporting papers and the contentions set out in Precedent G (the points of dispute and any reply). …… (7). When a provisional assessment has been carried out, the court will send a copy of the bill, as provisionally assessed, to each party with a notice stating that any party who wishes to challenge any aspect of the provisional assessment must, within 21 days of the receipt of the notice, file and serve on all other parties a written request for an oral hearing. If no such request is filed and served within that period, the provisional assessment shall be binding upon the parties, save in exceptional circumstances. PD 47 para 14: 14.3 In cases falling within rule 47.15, when the receiving party files a request for a detailed assessment hearing, that party must file— (a) the request in Form N258; (b) the documents set out at paragraphs 8.3 and 13.2 of this Practice Direction; (c) an additional copy of any paper bill and a statement of the costs, including a statement of the costs claimed in respect of the detailed assessment drawn on the assumption that there will not be a hearing following the provisional assessment; (d) the offers made (those marked ‘without prejudice save as to costs’ or made under Part 36 must be contained in a sealed envelope, marked ‘Part 36 or similar offers’, but not indicating which party or parties have made them); (e) completed Precedent G (points of dispute and any reply). 14.4: (1) On receipt of the request for detailed assessment and the supporting papers, the court will use its best endeavours to undertake a provisional assessment within 6 weeks. No party will be permitted to attend the provisional assessment.[23]The Court’s universal case management powers are contained in CPR 3. CPR 3.1(1) expressly provides that the list of powers within CPR 3 are granted ‘in addition to any powers given to the court by any other rules, practice direction or any other enactment or any powers it may otherwise have”. Further, the subservient nature of the general rules to any other specific rules is enshrined in CPR 3.1(2):
“Except where these Rules provide otherwise, the court may..”
[24]CPR 3.1(7) gives the court the wide power to vary, revoke or a Court order.[25]Thus, absent a specific rule operating over a specific situation, the court’s general case management powers listed in CPR 3.1 are available to the court. This is reflective of the jurisprudential body of authorities stemming from Kilby v Gawith [2008] EWCA Civ 812 through to more modern authorities of Terry v BCS Corporate Acceptances Ltd [2018] EWCA Civ 2422 and Deutsche Bank AG v Unitech Ltd[2016] EWCA.[26]All rules are, of course, made in furtherance of the overriding objective as enshrined in CPR 1.1.[27]Ainsworth v Stewarts Law LLP [2020] EWCA Civ is the well-known decision of Asplin LJ which concerned the interpretation of the practice direction applicable to the form and content of points of dispute. In so far as relevant, the dicta of her ladyship at [§39] is of utility in so far as she illuminates the understanding of the conceptual assessment process as being dispositive of items within points of dispute. That is, to some extent, relevant to the issues set out below.[28]PME v The Scout Association [2019] EWHC 3421 (QB) is the decision of Stewart J and the dicta set out at [§14] in respect of the interpretation of CPR 47.15(7) and [§16] in respect of the nature of a provisional assessment decision is also of some utility.

Specific or General Rule (CPR 47.15 or CPR 3.1(7)):

[29]Mr Moss submits that I cannot go behind the PA Order for two alternative reasons and that, in consequence, the Provisional Assessment is binding. In short, Mr Moss’ submissions can be summarised in the following way:a. That the power to set aside, revoke or vary an order under the Court’s general case management powers in CPR 3.1(7) is not available in these circumstances because it is a general rule which must accede to the specific rule governing provisional assessments in CPR 47.15(7); i. That MH’s failure to request an oral hearing in compliance with the specific rule in CPR 47.15(7) is therefore fatal and the PA Order is binding.b. In the alternative: the PA Order is a final order and thus binding save for in exceptional circumstances such that the test under CPR 3.1(7) is not satisfied in any event; i. That the test of exceptionality is not met in these circumstances. Indeed, Mr Moss says this case falls woefully short.[30]I cannot accept those propositions for the reasons that follow. CPR 47.15(7) v CPR 3.1(7): Literal Interpretation:[31]As this is question is primarily one of interpretation, I approach this question having regard to the usual cannons of statutory interpretation.[32]Firstly, it is right to acknowledge that CPR 47.15 and the associated practice directions were intended to create a streamlined, proportionate code for the resolution of low value costs disputes. That is an intention which has to be respected and complied with as part of the interpretive process.[33]However, it is instructive that PD 47 para 14.2(2) itself outlines those parts of the CPR which are excluded from the procedural code: the Court’s general case management powers are not listed therein. Had the rules committee intended the general case management powers to have no application to the provisional assessment procedure it could easily have so said and excluded those rules thought apposite. That such an exclusion has not occurred is instructive. CPR 3.1(1) confirms that the court’s case management powers are available in addition to any specific rules. Any interpretation ought to reconcile those two provisions.[34]I acknowledge the trite general proposition that in circumstances where a conflict exists between a general rule and an express rule, the provisions of the express rule are to prevail. However, I do not find this to be an example of such a situation. In my Judgment, the provisions of CPR 47.15 and CPR 3.1(7) are capable of being interpreted in a cohesive and complementary way.[35]CPR 47.15 is an example of a procedural code the type of which that can be found across the CPR. This particular code creates a workflow for low value costs cases caught by the confines of the provisional assessment regime as defined in CPR 47.15(1). That workflow encompasses entry and scope provisions, exit provisions, conduct of the assessment, initial resolution, review provisions and costs consequences. One can see that the steps are cumulatively progressive, intending to carry low value costs claimed from cradle to grave.[36]CPR 47.15(7) deals with the stage following the conduct of the provisional assessment by the assessing judge and provides the architecture through which parties can object to any aspect of the assessment so conducted. At first blush, the rule appears to be drafted widely, by reference to usage of “any aspect” and with a conclusive, express outcome in default: ….“any party wishing to challenge any aspect of the provisional assessment must, within 21 days of receipt of the notice, file and serve on all other parties a request for an oral hearing. If no such request is filed and served within that period, the provisional assessment is binding upon the parties, save in exceptional circumstances”.[37]However, on closer inspection the directive “any aspect” operates within, and thus cannot be divorced from, the context of a provisional assessment. Support from this is obtained from the structure of the sentence itself but also from the express connectivity with CPR 47.15(8)(a) which requires a requesting party to identify “items in the court’s provisional assessment” that they seek to challenge.[38]The understanding of “items” is gathered from the wider provisions within CPR 47: specifically 47PD para 8.2. Lady Justice Asplin’s decision at [§39] Ainsworth informs the correct interpretation of that paragraph and I have specific regard to her guidance therein which is of course binding upon me.[39]It is clear from that guidance that the items in the assessment are derived from the itemised objections in the points of dispute, themselves parasitic upon, and thus connected to, the items in the bill. These being items such as points of principle objecting to hourly rates, or the retainer, or objections against individual items outlined in the bill of costs itself. Thus, the concept of “any aspect” is not of universal application. It has an outer boundary defined by the four corners of the disputes capable of being resolved within the assessment itself. For example, it is difficult to see how a new objection not originally included as an item within the points of dispute could be utilised as a reason to seek an oral hearing due to the inability to comply with CPR 47.18(a).[40]However, there are circumstances, narrow and confined though they might be, where a party may wish to challenge matters which fall outside the assessment boundary. One such example being whether the provisional assessment itself has been conducted correctly and in accordance with the procedural code. That is a very different question to whether disputed items within the provisional assessment were resolved reasonably and proportionately having regard to costs jurisprudence. The former is a question of procedural jurisdiction: the latter is an assessment question of law, fact and degree.[41]Consequently, in my Judgment, Mr Moss’ isolated focus upon “any aspect” as a panacea is misguided. It is too narrow a vantage point. It not only excludes the contextual placement of the phrase specifically within CPR 47.15(7) itself, and generally within CRP 47.15, but, importantly, it also excludes the contextual placement within the wider architecture of CPR 47 by reference to 47PD para 8.2 and the guidance in Ainsworth . I therefore must reject that analysis.[42]Furthermore, on a practical level, such an exclusion would not be of general benefit to parties or furthering the overriding objective. The use of the Court’s case management powers can be engaged in a vast array of different circumstances, so much so that the higher courts have repeatedly refused to provide exhaustive lists, for plainly sensible reasons: doing so would fetter the ability of the courts to flexibly respond to matters in a just and fair way that complies with the overriding objective. Restricting the use of those powers within an entire subset of costs cases in circumstances where the rules do not so expressly provide would plainly not satisfy the overriding objective. Application where the court has undertaken an erroneous determination is one clear example of where the court’s case management powers are required to meet the justice of the situation.[43]I also find such an analysis to be destructive of the aims of the provisional assessment regime for the following reasons:a. The express intention is to provide both parties with the opportunity to have a low value resolution of their costs dispute by reference to an initial determination on paper. Where a receiving party fails to file the paying party’s full points of dispute they are depriving them of their right to access that paper based assessment. Pointing to the oral hearing does not rectify that deprivation. Not only because the oral hearing was the secondary, pre-existing right already available to the paying party, but there is an unavoidable increased costs associated with the oral hearing;b. Critically, the costs of the oral hearing are determined by reference to whether a 20% alteration has been achieved on the oral hearing. The immediate axiomatic problem arises in how one would approach calculating the percentage difference when the full objections have not been determined on the paper assessment. That alone stands as a strong indication that directing to the oral hearing as a remedy in these circumstances is destructive of the function and intention of the rules;c. Finally, requiring the paying party to effectively leapfrog the cheaper, paper-based resolution and proceed immediately to a more expensive oral hearing does not achieve the low value, proportionate, aim.[44]I do not find the decision of Stewart J at [§14] PME v Scout Association [2019] EWHC 3421to be of utility or binding in these circumstances. PME concerned the procedural correctness of an appeal from a provisional assessment conducted by Senior Costs Officer Kenny to Costs Judge Leonard. As part of that appeal to him, CJ Leonard concluded that he was limited to a review of SCO Kenny’s decision such that he could only hear arguments on hourly rates. The appellant appealed on the basis that Costs Judge Leonard was wrong to so limit himself and, as an appeal was requested, he ought to have held a full rehearing of the assessment on a ‘de novo’ basis. Stewart J rejected the position that a party had a choice whether to bring an appeal or seek an oral hearing when operating within the confines of CPR 47.15, holding that the correct procedural recourse was to seek an oral hearing.[45]The situation in PME was materially different to that before me. I agree with the proposition that the self-contained code in CPR 47.15(7) mandates the step of seeking a review of the provisional assessment prior to seeking an appeal pursuant to CPR 52. However, that presupposes that the provisional assessment was correctly constituted and that the review request arose from a matter within the four corners of the assessment itself. Indeed, the issue under dispute in PME was one of hourly rates. That is materially different to the issue before me.[46]However, support can be drawn from [§16] wherein Stewart J confirmed that a provisional assessment is ‘better described as a provisional assessment of items on the bill”. I agree. But that does not engage with nor dispose of the issue before me.[47]In my Judgment, the scope of a review hearing under CPR 47.15(7) and (8) is intended to operate over items within the provisional assessment itself in respect of which an objecting party may wish to seek review. A jurisdictional challenge to whether the provisional assessment itself was conducted correctly or not is a challenge wider than that contemplated by CPR 47.15(7). To interpret the scope beyond that expressly provided for is, in my Judgment, wrong as a matter of literal and contextual interpretation. Consequently, I reject the proposition that the specific rule operates to the exclusion of the court’s case management powers in these circumstances.[48]The more cohesive analysis is that:a. CPR 47.15(7) is specific to items challenged within a provisional assessment;b. CPR 3.1(7) is available in respect of challenges external to items in the assessment, of which jurisdictional challenges are but one example;c. CPR 3.1(7) and CPR 47.15(7) therefore operate in tandem, albeit in respect of differing situations.[49]In my Judgment, this analysis aligns with the express direction at CPR 3.1(1) that the court’s general case management powers are available in addition to those granted by specific rules.[50]I then test this interpretation by reference to the comparable positions across the civil procedure rules to which MH has drawn my attention. Those being:a. The default costs certification set aside provisions at CPR 47.12(1);b. Judgment in default of a defence at CPR 13.2(b);c. A third party debt order at CPR 72.3- 7.24;d. Charging orders at CPR 73.3.[51]MH also refers to the slip rule. However, the Application is not made on slip rule grounds. In any event, this is plainly not an apposite situation for the engagement of that rule.[52]The balance of the comparable provisions are not truly analogous to the situation before me. However, they are examples of specific rules which, variably, provide mechanisms for setting aside judgments of both an interim and final nature. The height of the assistance here is that the civil procedure rules have prospectively created express mechanisms for the court to set aside orders which are not regular. The default costs provisions in particular are instructive given their position within the wider detailed assessment ecosystem.[53]However, the critical aspect therein is that the final order in default is obtained, potentially, without the knowledge or engagement of the defaulting party. That creates the axiomatic need for a mechanism for redress in appropriate circumstances. The provisional assessment regime differs given that there is no default requirement or threshold to progress to a hearing. That is because in the situation is one where the parties are engaged and points of dispute have been filed and so the default position does not arise. What it does show is that there is an intention within the rules that where an order is obtained irregularly there ought to be a mechanism to set it aside.[54]The interpretation above aligns with this intention.[55]I therefore find that the court’s case management powers, and specifically CPR 3.1(7) are available to the court in these circumstances.

Alternative analysis: CPR 47.15(7) is not engaged on these facts:

[56]If I am wrong on the above, I find on the facts of this case CPR 47.15(7) is not engaged in any event. That is because absent filing a copy of the paying party’s complete objections, the provisional assessment was not correctly requested or undertaken.[57]MH advances two reasons for this: the failure to file the open offer and the failure to file the full points of dispute.[58]I do not find that the failure to file the open offer so destructive such that it obviates whether the provisional assessment hearing was correctly requested or not. That is because the open offer is not fundamental to the court being able to fairly and appropriately conduct the assessment. However, the failure to file the full points of dispute is a failure of a different type and magnitude. 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 sufficient that it is destructive.[59]Further, it is entirely relevant that Mr Cruise makes the proper and candid concession in his witness statement that MH’s points of dispute comprised the four documents and that these four documents ought to have been filed with the N258. Thus, these matters are not disputed. The issue is the procedural consequence of failing to do so.[60]In circumstances where the receiving party failed to correctly request a provisional assessment by filing the complete points of dispute, the erroneous decision was not a provisional assessment in the sense contemplated by CPR 47.15(7). Thus, the starting gun has not yet sounded for requesting a review hearing. Absent the application of the specific rule, the general rules in CPR 3.1(7) remain engaged and available.[61]I arrive at this conclusion for the following reasons:[62]For a provisional assessment hearing to be requested, the receiving party must comply with 47 PD para.14.3 set out above. 47 PD para.14.3(e) mandates that the N258 must be accompanied by “completed Precedent G (points of dispute and any reply)” as part of the supporting papers. It is only upon receipt of the N258 and the supporting papers that the court is thereafter engaged with the function of undertaking a “provisional assessment” as per 47 PD para14.4 and CPR 47.15(4).[63]Both linguistically and practically, it is axiomatic that absent compliance with 47 PD para14.3(e) and filing of the full documents in support, the court is unable to know, consider and determine the entirety of the issues in dispute between the parties and in doing so discharge its function to undertake a provisional assessment.[64]The workflow of the provisional assessment process from CPR 47.15(4) onwards, including the request for an oral hearing, is predicated upon a provisional assessment being correctly requested and undertaken. In circumstances where there is failure to file the requisite documents, it must follow that that ‘failure to launch’ has the effect that the court did not conduct a provisional assessment within the meaning of CPR 47.15(2). Absent a provisional assessment as properly understood, the consecutive steps in the workflow from CPR 47.15(4) onwards are not properly yet engaged and thus the time to request a compliant oral hearing cannot properly begin under CPR 47.15(7)(8).[65]Further, in my Judgment, 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 under 47 PD para 14.3. The benefit and burden to request a provisional assessment is vested in the receiving party only. It can be done without ever informing the paying party. That is a powerful tool in the receiving party’s arsenal and with it comes the responsibility to ensure that it is deployed correctly. The only protection afforded to the paying party is enshrined within the practice direction mandating that the complete points of dispute and replies are filed along with the open offer and the offers made by both parties. Analogy can be drawn to the duty of candour within without notice applications. Consequently, the duty on the receiving party to comply with the practice direction and ensure that all necessary documents are filed when the provisional assessment is requested is stringent.[66]That duty, in my Judgment, is to file all documents which the paying party serves comprising its points of dispute. It is not an unusual feature of costs litigation that points of dispute are encapsulated across a number of different documents. For example, Precedent G is often accompanied by an annotated Bill of Costs. Consequently, the need to file all documents comprising the four corners of the objections is not something which is rarely seen or experienced. Indeed, in my experience, such divisibility across different documents is the norm rather than the exception given the use both Excel and Word software.[67]If there is a dispute as to whether the documents comply with 47 PD 8.2 and Ainsworth then that is simply another dispute between the parties that must be resolved by the Judge having regard to the four corners of the documentation within the assessment. It would create a clear and obvious avenue for abuse if a receiving party were able to dictate and filter which documents they deemed appropriate to file and exclude those they considered non-compliant. Indeed, it could be properly said that to do so would be to usurp the court’s judicial function of decision making. Any outcome supportive of such an inapposite position ought to be strongly guarded against.[68]Here, the receiving party accept that they failed to file part of MH’s objections and mis-filed another part within the privileged offer section such that it was, for all practical purposes, beyond my view at the time I attempted to undertake the provisional assessment. In my Judgment, that failure was material. Consequently, when I erroneously attempted to conduct the provisional assessment, I was entirely unaware that I did not have all the relevant documents before me. Indeed, the PA Order and Written Reasons are replete with decisions dismissing the objections because they either did not make sense or were not Ainsworth compliant. 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. However, materially, the failure to do so meant that 47 PD para.14.3 had not been complied with and as such, a provisional assessment was not properly afoot such that CPR 47.15(7) is engaged mandating an oral hearing. Conclusion on

CPR 47.15(7) v CPR 3.1(7):

[69]For these reasons, I find that CPR 47.15(7)(8) are not engaged and that CPR 3.1(7) is apposite.[70]In so finding, I reject the proposition that I am effectively allowing an appeal from myself as contemplated by Stewart J at [§14] in PME v Scouts Association [2019] EWHC 3421(QB). I am not and have not revisited the issues determined as part of the erroneous provisional assessment for a second time. This decision is anterior to that process.[71]Further, as I find that the specific rule is not engaged, I find the line of authorities cited by Mr Moss, of Terry v BCS Corporate Acceptances Ltd [2018] EWCA Civ 2422 and Deutsche Bank AG v Unitech Ltd[2016] EWCA Civ 119 neither binding upon me nor instructive. They all confirm the proposition that the general rule must give way to the specific rule. That is not the situation before me for the reasons given.[72]In particular, I do not find the direction as to lex specialis reasoning cited at [§80] Deutsche Bank to be determinative given the finding that the jurisdictional concerns expressed are antecedent to, and distinct from, the four corners of the assessment by reference to disposal of items captured by the intended review process under CPR 47.15(7)(8).[73]As MH made a prompt application to challenge the jurisdiction of the provisional assessment within 7 days of the PA Order I find that the Court has jurisdiction under CPR 3.1(7) to set the order aside in appropriate circumstances. I do not find the failure to request an oral hearing fatal to that application.

Application of CPR 3.1(7):

[74]I now turn to the specific question of whether the threshold test in CPR 3.1(7) has been satisfied.[75]I am reminded of the long-standing guidance on the application of CPR 3.1(7) in Tibbles v SIG PLC [2012] EWCA Civ 518, at [§§39-42]. In particular, I remind myself of the following principles:a. The principles of finality in litigation are paramount;b. The jurisdiction is only to be appropriately exercised where: ii. There has been a material change of circumstances since the order was made, or iii. The facts on which the original decision was made were (innocently or otherwise) misstated.c. Misstatement of fact can include and concern misstatement of argument. The application in any given case is a matter of judicial discretion on the circumstances of each case;d. Whether the arguments were known to the parties at the relevant time is likely to be a material consideration;e. An example where operation of the rule is permitted is in the circumstance of manifest judicial mistake;f. The promptitude of the application is a relevant factors;g. The checklist within CPR 3.9(1) are of general relevance.[76]I also have regard to [§38] of Lewison LJ’s decision in Vodaphone Group PLC v IPCom GmbH and Co [2023] EWCA Civ 113 wherein his Lordship said this: In view of Mr Hinchliffe’s submission that exercise of the court’s power under CPR 3.1(7) is engaged where there is an incontrovertible fact subsequent to judgment which undermines the basis of that judgment, it is to be noted that that was exactly the position in Roult. In addition, in Roult it seems to me to have been accepted that the subsequent events must have been unforeseen (and possibly unforeseeable) in order to revisit a previous order intended to be final. (emphasis added)[77]The following factors are relevant:a. [§23] [§25] Mr Cruise’s witness statement accepts that the documents were omitted and that the documents ought to have been filed along with the N258. Thus, these facts are incontrovertible;b. The provisional assessment therefore proceeded on an incorrect basis as the material on which I proceeded was misstated due to omission given that it did so without all arguments advanced by MH. The absence of these documents axiomatically undermined the basis of my prior judgment. At present, I am very concerned that I have undertaken an assessment having regard to only a fraction of the arguments MH wished to advance. That is neither fair nor just;c. Court time has been expended on an erroneous assessment in circumstances where I ought to have been provided with the full documentation at the relevant time;d. The full points of dispute were plainly available to the receiving party at the time of the omission. Whether that omission was merely oversight or, as MH alleges, intentional, is a matter to be determined as part of the CPR 44.11 application which I will determine as part of the summary assessment of the costs of the provisional assessment;e. The application has been made within 7 days and thus is prompt;f. The result of the omission is that there has been a breach of PD 47 para 14.3;g. The breach is both serious and significant particularly in the circumstances where a paying party has no control over the documents filed for the provisional assessment hearing;h. On the evidence before me, Mr Cruise candidly accepts that this was a mistake. Mistakes are made, we are human, but I cannot conclude that a mistake amounts to a good reason for the breach of the rule, particularly in these circumstances.[78]There is some debate whether a provisional assessment decision is a final or an interim order. I agree with Mr Moss that the situation is not entirely clear. [§16] Stewart J’s dicta in PME provides some utility in directing that a provisional assessment order does not give rise to an appealable decision. Query whether the conclusion thereafter is that the order cannot be final until such time as it becomes binding on the parties at the expiry of the 21 day period. However, in these circumstances, such a conclusion does not direct toward the true nature of a provisional assessment order which is subject to an effective in-time application to set it aside prior to the 21 day time period.[79]However, after consideration, I conclude that I do not need to determine this issue. The outcome of whether the order is interim, final or something else would merely direct as to whether the threshold test is either a low one (in the event it is an interim order) or a high one of exceptionality (in the event it is a final order). In my Judgment, the facts of this case comfortably meet the higher test of exceptionality for the following reasons:a. It is accepted by the receiving party that they failed to file the correct documentation at the time the provisional assessment was requested. Failure to comply with mandatory rules, particularly those which operate in a without notice situation, ought to be the exception rather than the norm;b. That accepted failure led the Court into proceeding on a misstated position and in doing so wasting time undertaking an assessment on an incorrect basis. A situation such as this is, and ought to be, exceptional;c. 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. They not only provide protection for the paying party, but that base line of trust and court reliance on compliance with the rules is the foundation for the Court conducting the provisional assessment. Sadly, that situation has not occurred in this case.[80]In those exceptional circumstances 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 and an intime application has been made to remedy that misstep. The fair and proportionate remedy in my Judgment is to put the parties and the Court back into the position they all ought to have been in had the provisional assessment been conducted according to the full cohort of documents that ought to have been placed before the Court at the relevant time.[81]For these reasons, I set aside the PA Order pursuant to CPR 3.1(7).

Exceptional Circumstances:

[82]Further, if I am wrong on all of the above, then I find that there are exceptional circumstances within the understanding of CPR 47.15(7) for the same reasons as expressed above and the PA Order would be set aside under those circumstances in any event.

Future management:

[83]Due to the atypical nature of this situation, I have concluded that it is a proportionate exercise of my case management powers to remove this matter from the provisional assessment process pursuant to CPR 47.15(6) and direct that it proceed as a detailed assessment.[84]In arriving at this conclusion, I have had regard to the value of this Bill of Costs and the question of proportionality. However, those issues have to be balanced against the best use of the court’s time along with the extant issues in this assessment. I conclude that an oral hearing is likely to be requested in any event and thus it is more proportionate simply to grasp that nettle sooner rather than later.[85]The parties are invited to provide their dates of availability for a one-day detailed assessment and the Court will undertake to list it as soon as possible.[86]For the avoidance of doubt, all matters will be resolved at the relisted hearing, including any the balance of this application in respect of the application of CPR 44.11, contempt of court and whether a concluded agreement has been reached.