Ashi Group v Daniels: late Precedent U under CPR 45.63 carries no implied sanction

A failure to serve a Precedent U within the time required by CPR 45.63(2) does not engage the relief from sanctions regime under CPR 3.9, the County Court at Bristol has held, restoring a successful claimant's entitlement to its fixed recoverable costs.

In Ashi Group Ltd (formerly Anglian Windows Ltd) v Daniels [2026] EWCC 68, HHJ Berkley allowed an appeal against a district judge's order that the claimant should recover no costs at all, despite succeeding in full at a fast track trial of its claims for unpaid invoices. Counsel for the appellant told the court there was no direct authority on non-compliance with CPR 45.63, and the reasons were reserved to allow publication.

The claimant's completed Precedent U had been filed and served at 15.07 on the day before trial, approximately 19 hours rather than the required 24 hours in advance. The district judge, who raised the point himself, held that the 24-hour requirement was designed to put parties, particularly litigants in person, on clear notice of the costs they faced. He refused an oral application for relief from sanctions and made no order as to costs, depriving the claimant of fixed costs and the enhanced consequences of a Part 36 offer it had beaten.

Aaron Luxton, for the appellant, was permitted to expand the grounds of appeal to raise an anterior question of law: whether CPR 45.63(2) imposes any sanction at all. The respondents did not appear.

The judge drew on Birss LJ's review in Yesss (A) Electrical Ltd v Warren [2024] EWCA Civ 14, which held that the scope for identifying implied sanctions beyond the recognised categories, such as appellants' and respondents' notices, is very narrow. The rule requires that a party "must" serve the Precedent U, but says nothing about fixed costs ceasing to be recoverable or relief being required.

The court found Macdonald v Taree Holdings Ltd [2001] 1 Costs LR 147 very persuasive. In that case, Neuberger J addressed late service of a costs schedule under materially identical wording in the Practice Direction to CPR 44, holding that the court's response should be proportionate and focused on prejudice. HHJ Berkley concluded that CPR 45.63 contains no implied sanction and CPR 3.9 does not apply. The judge also noted that Macdonald had been approved more recently in Say Chong Lim v Chee Kong Ong [2022] EWHC 225 (Ch), while acknowledging Birss LJ's reminder that mandatory provisions are still meant to be observed.

The district judge had therefore proceeded on the wrong legal footing. Further, having treated the matter as an application for relief, he had not applied the three-stage Denton test. The court also found that he had taken irrelevant matters into account: the decision to proceed to trial had in reality already been made, and the fixed nature of the costs meant the defendants could have ascertained their exposure once the case was listed on the fast track. He had also given insufficient weight to the court's own failure to assign the case to a complexity band before trial, which made an accurate Precedent U impossible to prepare in advance.

Declining to remit the matter, HHJ Berkley exercised the discretion afresh under the Macdonald guidance. The breach was a "mere" failure without aggravating features, and no meaningful prejudice had been caused to the defendants beyond the loss of a windfall. Depriving the claimant of costs assessed at £18,850.47 for a short delay would be out of all proportion. Costs were assessed in the normal way, taking account of the Part 36 offer.

Aaron Luxton appeared for the appellant. The respondents did not appear and were not represented.