The defendant costs specialists

New proportionality test

By on Jun 6, 2014 | 22 comments

Has anyone had any initial decisions on the new proportionality test, either as part of a provisional/detailed assessment or as part of a costs management decision?

    22 Comments

  1. Not had a decision but do wish paying parties would stop trying to mislead the court by saying it applies when it doesn’t

    abcde

    6th June 2014

  2. No decision for me either but do wish receiving parties would split their Bill of Costs pre and post 1.4.13 in cases where both old and new tests apply.

    Anonymous

    6th June 2014

  3. Yes
    – SCCO PA

    CJ agreed costs disproportionate, imposed a 5% further reduction to the assessed bill, then assessed it

    – High Court CCMC Budget

    Judge said budgeting “was not a DA” but agreed the future costs were “disproportionate for his expectation of a claim like this”, and proceeded to reduce costs by 40%, including disallowing certain Counsels fees and an expert

    – Application Hearing in PA

    DJ stated it was grossly disproportionate to expect the Court to wade through documents on a PA, and ordered disclosure on a preliminary issue

    Personally, I’ve found its not which rule you quote (@abcde), but the concept of actually assisting the Court to reduce and manage costs.

    Anonymous

    6th June 2014

  4. Sorry the court is there to either assess the costs or manage them. They do that by reference to the appropriate rules. The latter rule is more draconian in effect. If you say the latter rule applies when it doesnt then you are misleading the court. Simple

    I also agree the bills should be split appropriately. That is basic and if the receiving does not do so thn they too are seeking a gain a strategic advantage and should pay the extra costs caused.

    abcde

    6th June 2014

  5. *great grammer I know before anyone says

    abcde

    6th June 2014

  6. Dear abcde
    Do you mean ‘grammar’?

    Simon Maguire

    6th June 2014

  7. No, I meant pedant

    As I said before too much one upsmanship

    abcde

    6th June 2014

  8. @abcde 9:54am

    having never misled a Court I wouldn’t know, and will bow to you on that one. What is however simple, is I routinely see and hear representations from draftsmen from both sides which are glaringly wrong, but from rank ignorance and misunderstanding, rather than an intent to mislead.

    A good advocate deals with such in their stride and addresses the Court on both sides argument, and persuades the Court to agree with them, and on matters of dealing with costs proportionately, the Court will ordinarily exercise its wide discretion on reductions, regardless of which rule is (in)correctly quoted

    PS. re: not splitting bills. Just say the RP has failed to distinguish costs pre and post 01.04.13, and as any doubt is to be in the PP favour, the Court should apply their mind to the post 01.04.13 test only in their wide discretion accordingly

    PPS. invoice in the post

    Anonymous

    6th June 2014

  9. Always split the bill pre and post unless of course proceedings issued pre 01.04.2013. At PA Ct has said in some bills that are disproportionate but then doesn’t appear to have done anything further

    Roberto Carassale

    9th June 2014

  10. I agree, we just deal with it

    However the point is the “mistake” should not be made, whether it is on purpose, just misguided or rank ignorance, the ultimate effect is to mislead the court. This is more so now Provisional Assessments have been introduced.

    We are supposedly professionals (and charge as such) and so neither “intentional” mistakes or “misguided” mistakes should be made.

    abcde

    9th June 2014

  11. its so sad; pathetic actually; that when Simon raises a perfectly sensible and indeed essential issue in a blog, such as here, it is then hijacked by arrogant posters with more interest for their own self worth and opinions, than making any proper contribution to the subject debate.

    There is ONE reply on the actual subject matter. Does ANYONE have any further proper contribution? My own firms experience is that Judges are finding claims disproportionate, but then completely fudging how they assess such post 01.04.13 by giving no specific comment on how then they are reducing the bill consequent to their finding. Just as, with most PA decisions, no written comment is provided to enable consideration as to what to Appeal

    Anonymous

    17th June 2014

  12. My firm has had no real decisions on the new proportionality test yet.

    Only cases that have been to assessment where new test applies to a substantial element of costs have been PA with no clear logic applied. Also most PAs do not add up the figures so cannot tell is still disproportionate on the PA in any event.

    The 5% reduction before assessing the third poster refers to in the SCCO must be wrong. How can the costs officer know if costs are disproportionate where only reasonable and necessary costs are allowed BEFORE assessing the bill?

    For any ruling we need (i) lots of costs to have been incurred post 1 April 2013 (ii)those costs reduced on old Lownds* test to reasonable and necessary costs and (iii) that assessed amount to still be disproportionate to costs and preferably (iv) no misconduct by claimant/receiving party so any reduction is on ground of proportionality rather than conduct.

    At least another year before we get any guidance from anything above first instance decision.

    'king costs

    22nd June 2014

  13. * assuming the new test is simply Lownds plus an extra check at the end, which may not be the case

    'king costs

    22nd June 2014

  14. respectfully disagree with ‘king costs in his above assertion. The new proportionality test does not engage Lownds Test at all, if costs appear disproportionate up front, the Court has effective carte blanche in its discretion as to how to reduce them. In the instance supplied, the SCCO decided a percentage reduction was the appropriate way to show the Courts displeasure at disproportionate costs, and then assess.

    As regards awaiting something more than a “1st instance decision”, what fool is going to Appeal on the exercise of discretion, given the debacle of Mitchell?? Perhaps the ACL should take the lead in this sort of Appeal to get clarification, after all they do say they are the costs experts and have spent soooo much on an advice recently to see if they have audience rights

    Anonymous

    24th June 2014

  15. I attended my first Costs Budgeting CMC a couple of weeks ago.It was a clin neg case that had complex breach of duty and causation issues.The claim is arguably worth between £75000 and £100000.
    The DJ decided he was entitled to determine the appropiate hourly rate for future costs.We had claimed £350 per hour.He said that it was a myth that all clin neg cases were complex and should attract a higher rate.He considered the claim was worth no more than £50000 and since the claimant had made a full recovery he would allow £205 per hour which was slightly higher than the guideline rate of £201 per hour.
    He then went through the time claimed and made some small time reductions.He then asked us to recalculate the amount and let him know the figure.

    john hall

    25th June 2014

  16. Was that Bristol by any chance? ?

    abcde

    26th June 2014

  17. @ John Hall

    I don’t see any mention of proportionality there at all…….

    Anonymous

    26th June 2014

  18. That sounds very similar to recent hearings in the East Midlands to me…

    Money for Nothing

    26th June 2014

  19. More a mechanics of budgeting thing this and this is very interesting re. rates…

    I believe it better to have these arguments upon inception of an action / CMC instead of after – when the case is a distant memory to the solicitor.

    Setting, monitoring, policing, revising budgets is where the future work is going to be in civil litigation.

    The effective “stewards inquiry “of DA is no more and that is a positive. All we need now is electronic filing of court documents and a new Bill format.

    Standards will improve in long run and the anachronistic methodology is now thankfully being dispensed with.

    We will now see who the really “Uber FE’s” are at every layer of the case…

    If you are worth £350 P/H to sue the “envy of the world” / NHS then it’s probably more ethical to extoll your virtues and convince the Judge at the phase three costs negotiation hearing…

    With that as your guide – thanks for posting!

    Bill Fay

    26th June 2014

  20. Waffle Waffle Waffle about proportionality, splitting bills pre and post etc etc. The old test didnt work hence Jackson,what difference will splitting the bill make? how many advocates really understand the principle? how many Judges? My humble view is that the receiving party ought to be under a duty to conduct the case in a reasonable and proprtionate manner, if they do not then the outcome of any costs assessment should reflect that, not only by disallowing costs but putting in further punitive measures. Heres an idea how many Claimants would inflate their bills if they knew that the outcome of the assessment meant that they would recover no costs of the assessment process and lose up to 10% of their base pc’s???

    Mr Lord Chief Justice please read this fella

    annonymous

    26th June 2014

  21. Sorry my previous post was incomplete.We re calculated the bill and it was reduced from £102,000 to £81,000.The D.J. commented that he thought it was still disproportionate but allowed it to stand.Bearing in mind our pre action costs were calculated using the higher rate then the actual amount we may recover at the end of the matter may well be significantly less than the agreed budget if the costs D.J. adopts the previous D.J.s views on the appropriate charging rate.I can see plenty of satellite litigation on that point alone!

    john hall

    27th June 2014

  22. who could have distilled the Lownds test from the CPR? no one in my opinion. Court of Appeal made it up. til they do the same on the new proportionality test neither judiciary not costs practitioners know for certain how to apply it.

    'king costs

    27th June 2014

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