The defendant costs specialists

Posts made in January, 2017

Are additional liabilities subject to new proportionality test?

By on Jan 4, 2017 | 1 comment

The run up to Christmas brought us a number of interesting costs developments. A decision from Master Rowley in the Senior Courts Costs Office throws new confusion onto the issue of proportionality.  In King v Basildon & Thurrock University Hospitals NHS Foundation Trust he expressly disagreed with the decision of Master Gordon-Saker in BNM v MGN that additional liabilities should be subject to the new proportionality rule. This would be less of a problem if the appeal in BNM v MGN was to proceed in early 2017, as appeared to be the position until recently.  The date for the hearing has now been pushed out to October 2017.  We are now faced with the prospect of having to wait almost 4½ years from the introduction of the new proportionality test until any kind of guidance is given by the higher courts.  This makes the comments of Lord Neuberger, made back in 2012, all the more farcical: “It would be positively dangerous for me to seek to give any sort of specific or detailed guidance in a lecture before the new rule has come into force and been applied. Any question relating to proportionality and any question relating to costs is each very case-sensitive, and when the two questions come together, that is all the more true. The law on proportionate costs will have to be developed on a case by case basis. This may mean a degree of satellite litigation while the courts work out the law, but we should be ready for that, and I hope it will involve relatively few cases.” Since when was it dangerous for litigants or litigators to know how the law was to be applied? Having decided that additional liabilities were to be excluded from consideration of proportionality, Master Rowley found that base costs of £88,337 would “almost always” be proportionate for the type of clinical negligence case he was assessing that proceeded to a 3-day trial and settled for £35,000.  However, he held that if additional liabilities had been subject to the new test, the total assessed costs of £234,000 would have been unlikely to be proportionate.  This does rather beg the question as to where between £88,337 and £234,000 the tipping...

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