If a paying party fails to serve Points of Dispute within 21 days of the date of service of the notice of commencement, CPR 47.9 imposes two automatic consequences: the paying party may not be heard further in the detailed assessment proceedings without the court’s permission, and the receiving party becomes entitled to apply for a default costs certificate for the whole of the costs claimed. Neither consequence requires a separate court order; they follow automatically once the 21-day period has expired.

The Immediate Consequences of Late Service

Under CPR 47.9(3), a paying party who has not served Points of Dispute in time may not be heard at the detailed assessment hearing unless the court gives permission. Under CPR 47.9(4), the receiving party may apply for a default costs certificate under CPR 47.11. Together, these provisions are designed to keep detailed assessment proceedings moving without unnecessary delay, and the courts have generally taken a strict approach to enforcing them, particularly before a costs judge or district judge in the Senior Courts Costs Office.

It’s worth noting that timing and content are separate requirements. Serving Points of Dispute within 21 days avoids the consequences set out above, but the document served must still comply with CPR 47.13, which requires Points of Dispute to be short and to the point, identifying any general points before addressing individual items in the bill. A paying party who serves something on time but plainly non-compliant may still face challenges to the weight given to it, even though the default costs certificate route under CPR 47.9(4) won’t apply.

What Is a Default Costs Certificate?

Once the receiving party’s application is filed on Form N254, confirming valid service of the notice of commencement and expiry of the 21-day period, a default costs certificate can be sealed by the court. This certifies the whole of the bill of costs as claimed. Crucially, this isn’t a provisional figure open to later challenge on the merits; it fixes the amount the paying party owes, with the only realistic route back being an application to have the certificate set aside.

Setting Aside a Default Costs Certificate

CPR 47.12 allows the court to set aside or vary a default costs certificate where it appears there is some good reason why the detailed assessment proceedings should continue. This is the central test, and the courts have consistently held that an application is brought under CPR 3.9, but in practice, costs judges have widely applied Denton-style reasoning by analogy when assessing whether a good reason exists.

Following Denton v TH White Ltd [2014] EWCA Civ 906, this generally means the court will consider: how serious or significant the failure to serve Points of Dispute in time was; whether there was a good reason for it; and, taking into account all the circumstances of the case, whether it would be just to set the certificate aside. Costs judges have shown limited sympathy where the delay is lengthy and unexplained; several reported decisions have refused set-aside applications on exactly this basis, even where the paying party could point to a potentially significant reduction in the bill if assessment were allowed to proceed.

Practice Direction 47, paragraph 11.2(3) also imposes a procedural requirement: an application to set aside must be accompanied by a copy of the bill, a copy of the default costs certificate, and draft Points of Dispute. This means a paying party seeking to set aside a certificate needs to have already prepared the substantive response it failed to serve in time; the application and the underlying dispute can’t realistically be separated.

Practical Points for Paying Parties

Acting quickly is critical. Courts consistently expect a paying party to apply to set aside a default costs certificate promptly once it becomes aware of it. Delay at this stage compounds the original default and makes a successful application considerably harder. Where genuine negotiations are ongoing, it’s far safer to agree an extension in writing before the 21-day period expires than to rely on informal understanding and later have to justify a breach after the fact.

Frequently Asked Questions

What happens if Points of Dispute aren’t served in time?

The receiving party may apply for a default costs certificate under CPR 47.11, and the paying party may not be heard further in the detailed assessment proceedings without the court’s permission.

Is setting aside a default costs certificate the same as relief from sanctions?

Not strictly. The application is made under CPR 47.12, not CPR 3.9, though courts have generally applied similar Denton-style reasoning when deciding whether a good reason exists.

What must be filed with an application to set aside?

Under PD 47, paragraph 11.2(3), the application must include a copy of the bill, a copy of the default costs certificate, and draft Points of Dispute.

How quickly must an application to set aside be made?

As promptly as possible once the paying party becomes aware of the certificate; delay significantly reduces the prospect of a successful application.

How Greener Costs Can Help

Our team of costs lawyers and costs draftsmen advises paying parties facing a default costs certificate, and prepares the draft Points of Dispute and supporting application required under CPR 47.12. We also assist receiving parties applying for a certificate where Points of Dispute have not been served in time.

If your firm needs urgent advice following a missed Points of Dispute deadline, contact Greener Costs today. Call us on 01204 263047 or email info@greenercosts.co.uk.