MT Construction Limited v Dennis Frieze & Anor

On 17 July 2025, in an order for an injunction, the Defendants (then identified as Respondents) were ordered to pay to the Applicant (then identified as the Claimant) the Claimant’s costs of the application on the indemnity basis to be assessed if not agreed. The Order provided for a payment on account of £20,000 which has been made in accordance with paragraph 3 of the Order for injunction.

The Claimant’s agents TLS prepared a Bill of Costs and Notice of Commencement. They have been making attempts to serve the Service Pack on the Defendant's Solicitors, initially Hunters Solicitors, from September 2025 onwards. For various reasons the Defendant's Solicitors would not or could not confirm whether the Bill had been received when it was first served by post nor would they confirm whether they would accept service by email. On 17 October 2025 TLS served the Service Pack by first class post, and that Pack was delivered on 20 October 2025. The Notice of Commencement provided for Points of Dispute to be served on or before 11 November 2025.

On 17 October 2025 it is accepted there was a telephone call between Mr Collins of TLS and Mr McGuinness of Hunter's Solicitors.. Mr McGuinness's evidence is that during the telephone call on 17 October 2025 Mr Collins agreed in principle that if service by email were accepted, a 21 day extension would be granted for the Points of Dispute. The Claimant's position as set out by Mr Collins in his witness statement is that TLS’ file contains no record of any call with Hunter's Solicitors after 17 October 2025 and that the one sentence file note of 17 October created by Mr Collins records only that “Hunters do not have instructions for accepting service via email”.

On balance, I prefer Mr Collins’ version of events and it follows that on the basis of his understanding that the Defendants would not accept service by email he re-served the Service Pack by first class post 17 October 2025 which Pack was delivered on 20 October 2025. The Notice of Commencement stipulated a deadline of 11 November 2025 for Points of Dispute.

On Saturday, 8 November 2025 Hunters Solicitors sent an email recording “Further to our call, it was agreed that if we agree to accept service by email 21 days for Points of Reply could be agreed, and that we would seek instructions in that regard – and can confirm that this is agreeable…". By the time this email was sent, Hunters had been in possession of the latest correctly served Service Pack for 19 days.

On Tuesday 11 November, TLS replied by email confirming that Points of Dispute were due by close of play that day, warning the Defendant’s Solicitors that a request for a Default Costs Certificate (“DCC”) would be filed if Points of Dispute were not received by 4 pm. No Points of Dispute were served and it is accepted that no application was made to court for an extension of time to service of Points of Dispute. On 12 November 2025 TLS filed a request for a DCC which was subsequently sealed by the Court on 14 November, was communicated to Hunters Solicitors by email on 14 November 2025 and was delivered by post on 17 November 2025.

On 28 November 2025 the Defendants issued an application to set aside the DCC supported by the witness statement of Mr McGuinness. Later Hunters Solicitors were intervened into by the SRA on 4 March 2026. Mr McGuinness is now at Alpha Alexis Law Firm under the supervision of Mr Mahesh Kakkar.

In open correspondence dated December 2025 the Claimant offered to consent to the DCC being varied to remove the VAT element, reducing the certified sum from £47,005 to £39,271.

The Points of Dispute were not served with the application to set aside the DCC. In fact they were not served until shortly before today's hearing. The Claimant resisted the application in its entirety.

CPR 47.12 governs applications to set aside a Default Costs Certificate. Under CPR 47.12(1) the Court must set aside a DCC if it is shown the receiving party was not entitled to obtain it in the first place. Under CPR 47.12 (2) the Court also has a discretion to set aside or vary a DCC where there is some other good reason why the detailed assessment proceedings should continue.

Practice Direction 47 paragraph 11.2 sets out the procedural requirements for an application. It must be supported by evidence, the Court must consider promptness and as a general rule the Applicant must file a draft of the Points of Dispute that the paying party proposes to serve if the Certificate is set aside.

Where the mandatory ground is not established and the Court is exercising its discretion under CPR 47.12 (2) the principles in Denton v White are engaged. These require the Court to consider the seriousness and significance of the breach, the reasons for it, and all the circumstances of the case. The Court should take into account the need to conduct litigation efficiently, proportionately and in a manner that enforces compliance with the Rules, Practice Directions and audits. It is clear that good reason for the failure must be established before the Court proceeds to consider the wider circumstances.

I am satisfied that the Service Pack was validly served and was delivered on 20 October 2025 as confirmed by Royal Mail tracking. The period of 21 days prescribed by CPR 47.19 therefore expired on 11 November 2025. I am invited to accept that the email of 8 November 2025 recorded and gave effect to a binding agreement extending the PoD deadline to 1 December 2025. I find that the email of 8 November 2025 does not satisfy the requirements of CPR 2.11 for a binding written agreement to vary time. An email sent unilaterally by one party after having received documents by postal service, purporting to record the terms of an earlier oral conversation 20 days earlier which the other party denies having had in those terms cannot of itself constitute a written agreement of both parties. TLS’ immediate silence in response to that email does not constitute agreement, particularly since their email of 11 November 2025 expressly and unambiguously asserted the original deadline.

I am conscious that the 8 November was a Saturday leaving one whole working day before the deadline at a time when the deadline must have been apparent to Hunters. Having considered all of this evidence I am not persuaded that a binding extension agreement was reached and the mandatory ground under CPR 47.12 (1) is not established.

Turning to the Court's discretion under CPR 47.12 (2) in the Denton framework I find that the breach was serious and significant. The Defendant’s Solicitors had been in possession of the Bill by service since at least 20 October 2025 and almost certainly for several weeks if not over a month beforehand. The 21 day period prescribed by CPR 47.19 is sufficient in all but the most complex cases and no Points of Dispute were served by the deadline or indeed before this week. Mr McGuinness’ reasons for the breach are that the failure was inadvertent, that he believed there was an extension in place until 1 December, and that the period around 11 November 2025 he was engaged in heavy High Court commitments in Birmingham, Manchester and London. There is no evidence about the systems in place at his firm for supervision, for receiving and distributing email and postal correspondence, no evidence about diary management systems, no explanation as to why e-mail service was initially refused and nothing to explain what the systems were to cover the work of a busy fee earner working all over the country.

Even accepting that Mr McGuinness believed there was an extension in place, that belief was not objectively reasonable in the absence of any written agreement from TLS and in view of the fact that the Bill of Costs and Notice of Commencement had been served on 20 October and sent by email previously. The unanswered email of 8 November 2025 does not constitute any agreement but it is relevant that even if one assumes the deadline was 1 December 2025 Points of Dispute were still not served by that date.

The reason for the breach is at best a combination of a mistaken belief in an extension and the pressure of other commitments. These are not sufficiently good reasons within the meaning of the authorities. The Court takes into account the need to conduct litigation efficiently and at proportionate cost. The Defendants argue that the Points of Dispute now served demonstrate genuine issues to be resolved on assessment and argued that setting aside the DCC would cause no prejudice to the Claimant because the Claimant has already received £20,000 on account, and there are genuine issues to be resolved.

The draft Points of Dispute served before this hearing are in general terms and do not identify with any specific particularity what items are to be challenged and on what basis. In any event, the mere existence of draft Points of Dispute in a claim of around £39,000 net where £20,000 has already been paid on account does not of itself demonstrate there is good reason for the assessment to continue. It would be disproportionate for it to do so in any event. The proposed N260s I have seen for this hearing alone together total over £17,000.

On promptness there was a delay of between 14 and 11 days before the application to set aside was issued. Mr McGuinness explains this by reference to the SRA intervention and transition. I take that into account but note that the SRA intervention did not occur until 4 March 2026, well after the application was issued. The delay in November is not explained by that.

I am not satisfied that a good reason has been shown for the detailed assessment to continue. The mandatory grounds fail and the discretionary grounds also fail. The application is therefore refused.

The Claimant has offered in open correspondence the consent to the DCC being varied to remove the VAT element. In any event the VAT certificate within the Bill confirms that the Claimant is able to recover VAT as input tax from HMRC. The DCC will be varied under CPR 47.12 (2) to reduce the certified sum at £39,271.

The payment of £20,000 made on 14 August 2025 will of course be credited against the varied DCC sum in the ordinary way upon enforcement.

For the reasons set out above the application to set aside the Default Costs Certificate is refused.

The Default Costs Certificate dated 14 November 2025 is varied so that the sum certified is reduced to £39,271.

The payment of £20,000 made on account on 14 August 2025 is to be credited against the varied DCC sum upon payment or enforcement in the usual way.

The varied DCC shall stand as a Costs Order in these proceedings in respect of the Claimant's costs of the injunction application.

The Claimant has succeeded in resisting the application to set aside the DCC. The Defendants brought this application and have failed on a substantive ground. The set-aside is refused. The variation of the DCC to remove VAT was, on the Claimant’s open offer always going to happen. The Defendants chose not to accept the offer to vary and instead pursued a full set-aside.

Accordingly, the Defendant shall pay the Claimant's costs of and occasioned by this application. I have been invited to summarily assess the Claimant's costs relying on the N260 signed on behalf of Curzon Green Solicitors of 23 March 2026 and note that (correctly) no VAT is claimed. I am summarily assessing the costs at £4,250.