No clarity offered on new proportionality test following judgment in BNM

The long-awaited judgment following the appeal hearing in the case of BNM v Mirror Group Newspapers Ltd [2017] EWCA Civ 1764 was handed down this morning. Many cases around the country had been stayed pending the judgment in the case in the hope that some clear guidance would be given in relation to the application of the new proportionality test. 

​Simon Browne QC (who acted for the Claimant in the appeal) had warned that the judgment would not be the "sermon on the mount" and that proved to be the case as the guidance that many had hoped for failed to materialise, so practitioners are still left to grapple with the concept over 4 and a half years since the introduction of the new test. 

​One area that the Court of Appeal did provide some clarity on was the application of additional liabilities in relation to the new proportionality test. The Court of Appeal found that, where recoverable additional liabilities still apply, they are not to be taken into account when considering the application of proportionality under the new test. 

​Master Gordon-Saker had considered that the new test should include any recoverable additional liabilities and the Court of Appeal remitted the matter back to the Master to consider proportionality again in the light of this decision. 

​As we reported at the time of the appeal hearing, there are other cases in progress that relate to the application of the new proportionality test. It is to be hoped that the Court of Appeal will take the opportunity to provide some guidance to practitioners in the not too distant future, but for now the status quo remains.