Where now for proportionality?
The recent judgment from the appeal in the case of May v Wavell group has given parties a little more to chew on in terms of guidance on the application of proportionality. However, it is not guidance from the Court of Appeal and can only be taken as a reasonable indicator of the approach to be taken.
The comment that seems to have gained the most coverage in the days following the judgment was His Honour Judge Dight's comment that proportionality was not a "blunt instrument" with which to arbitrarily reduce costs that have been assessed as reasonable on a line by line basis.
The judgment does give some reasonable insight to the thoughts of HHJ Dight on the process and much of what is said seems eminently sensible. I do believe that there must be good reason to make further reductions to costs that have already been deemed to be reasonably incurred and reasonable in amount. If the approach suggested is adopted around the country on detailed assessment, then one could reasonably expect that in many cases there would be no further reduction made and where there is a reduction made, it will not be substantial.
My concern is in the comments made with regard to the intention of the rules committee. HHJ Dight stated:
“I doubt that the rules committee intended that a costs judge could or should bypass an item-by-item assessment and simply impose what he or she believed to be a proportionate global figure."
The practical implementation of the test requires the judge to have made a line by line assessment of the figures before the new test is applied, but it seems to me that it certainly is open to the judge to impose whatever sanction is felt necessary to bring the recoverable costs down to a "reasonable and proportionate figure". On that basis, the comments of HHJ Dight make little sense from a practical implementation standpoint.
This judgment just serves to muddy the waters yet further on proportionality. There is a real requirement for the Court of Appeal to give some firm guidance to practitioners on this point or we will continue to struggle in the dark with this issue. It is a shame that the Court of Appeal did not take the opportunity when hearing the appeal in the matter of BNM v Newsgroup Newspapers to provide some meaningful guidance on proportionality.
Lets hope that this is to come at some stage and the sooner the better for all.
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