Kennedys successfully defended this claim concerning allegations of a negligent delay in diagnosis of breast cancer at trial. Claimant solicitors were retained under a Conditional Fee Agreement backed by ATE insurance and accordingly costs were recoverable.

A Bill of Costs was served but Claimant solicitors failed to serve Points of Dispute and Trust applied for a Default Cost Certificate, which was issued and served on the same day. Claimant solicitors subsequently served Points of Dispute and made Application to set aside Default Cost Certificate on the grounds that:

  1. Bill of Costs was overlooked due to Claimant solicitor’s involvement in another trial; and
  2. At Detailed Assessment hearing the Bill of Costs was likely to be reduced.

Claimant’s Application dismissed by Master Rogers sitting at the Supreme Court Costs Office accepting Claimant had identified no “good reason” (as required under CPR PD 47.11 Section 38.2(3)) to set aside the certificate. He commented that Kennedys’ Bill of Costs was reasonable and the majority of the Claimant's Points of Dispute were unlikely to be upheld at Detailed Assessment.

The decision highlights the merits of prompt service of a Default Costs Certificate in the absence of receipt of Points of Dispute and the importance of ensuring Points of Dispute are served in time to avoid “indemnity” costs.