‘Is Proportionality still relevant?’
In Finglands Coachways Ltd v O’Hare, the Claimant was pursuing a £3m-plus claim for personal injury. However when the locus expert changed his mind regarding the version of events, the Claimant discontinued.
The Defendant thereafter served a bill totalling £60,101.00 which following detailed assessment by District Judge Iyer was reduced to £37,803.00.
The Claimant appealed the decision on the basis that DJ Iyer applied the new test of proportionality based on ‘necessity’ as opposed to the old test of ‘reasonableness’ when there had been no finding or argument about the costs being disproportionate.’
Permission to appeal was refused. Before the High Court, Cranston J said the following:
‘To my mind, CPR 44.4(2) of the old rules meant that the court would of its own initiative disallow disproportionate costs even if the paying party had not raised the point’. Carnston J then referred to the case of Giambrone v JMC Holidays Ltd  EWHC 2932; “Morland J also said even if a bill overall does not appear to be disproportionate, that does not preclude a judge from concluding that specific items are disproportionate and then applying the dual test of necessity and reasonableness to those items,” even under the old rules.
Essentially therefore, this case illustrates that even if there is no finding of the costs being disproportionate, the Court can still consider proportionality based on the Post April 2013 rules, as opposed to the Pre April 2013 rules.
Result? Well not really…it just seems like another blow on the recoverability of legal costs!
Nope, your mistaken, it’s not that bad, as in the next few years, all legal costs will either be subject to fixed fees or will go through the cost budget process. The costs that are subject to fixed fees are incontestable and are deemed proportionate, and the costs subject to the budget process are the only cases that will reach detailed or provisional assessment. Those cases that will have gone through the budget process are those whose costs will have been approved by the Court and stamped as proportionate. Any Points of Dispute therefore that raise proportionality please see MRN Costs Solicitors.