A Disproportionate Response
The long awaited decision in the case of BNM v Mirror Group Newspapers will be awaited a little while longer!
The hearing of the appeal took place on 11 October before Sir Terence Etherton (the Master of the Rolls), LJ Longmore and LJ Irwin.
Alexander Hutton QC and Jamie Carpenter represented MGN and Simon Browne QC and James Laughland represented BNM.
Reference was made during the hearing to a number of other appeal hearings that the Court of Appeal are due to hear.
The cases of Reynolds v Nottingham University Hospitals Foundation Trust, McMenemy v Peterborough & Stamford Hospitals NHS Foundation Trust, West v Stockport NHS Foundation Trust and Demouilpied v Stockport NHS Foundation Trust are all due to be heard in the Court of Appeal and the Master of the Rolls appeared keen that the facts of all these cases be considered before the judgment be handed down.
David Bowden, a journalist who attended the hearing, reported that the judgment was reserved and was unlikely to be handed down until after the hearings of Reynolds and McMenemy (both were listed to be heard on 17 or 18 October).
It is to be hoped that the judgment is handed down swiftly, as there are numerous cases around the country that have been stayed pending the decision in this case. It is farcical that it has taken this long for the issue to come before the Court of Appeal.
Hopefully practitioners will not have too much longer to wait!
After a long wait for some clarity from the Court of Appeal in relation to proportionality, the hearing of the appeal in the case of BNM v Mirror Group Newspapers is due on October 10 or 11.
It seems ridiculous that it has taken so long for some guidance to be given in relation to Proportionality, one of Lord Justice Jackson’s key reforms (introduced as long ago as April 2013!). Costs practitioners during that time have been negotiating with one hand tied behind their back, as nobody could predict with any kind of accuracy how the Courts might view Proportionality on a case by case basis.
Whatever the outcome might be, it will be good to finally have some meaningful guidance on this issue. Keep your eye out for our summary of the judgment once it is handed down. Hopefully, if it is reserved, we won’t be waiting too long to hear the outcome!
In other news, Lord Justice Jackson has confirmed that 10 of the 16 causes of excessive costs are “sorted or improving”.
The issues that remain are Court fees, guideline hourly rates, pre-issue costs, time consuming procedures and the “complexity of law”.
Lord Justice Jackson was critical of the government in not setting up a new body to consider the issue of guideline hourly rates, though he considered that was “receding in importance” as a result of the success of other reforms.
He also recommended primary legislation be passed to introduce costs management and a grid of costs to control pre-issue costs.
In good news for lawyers (particularly those in the costs profession!), Lord Justice Jackson was positive about the progress made in relation to costs budgeting stating that “solicitors and barristers are much better at budgeting cases and discussing costs at hearings”.
He did, however, state that fixed costs for cases up to £25,000.00 would be possible in medical negligence cases though he conceded that medical negligence was a “very difficult subject”. He did not consider that many cases would fall into the fast track or the proposed intermediate track.
Whatever the outcome of the hearing in BNM, October is set to be a busy month for the costs profession!