Supreme Court comments on proportionality test
One of the ongoing areas of uncertainty post-Jackson is whether additional liabilities should be included (where still recoverable) when considering proportionality.
I am grateful to Andy Ellis for pointing out the comments of the Supreme Court in Times Newspapers Ltd & Ors v Flood & Ors  UKSC 33:
“However, certain changes introduced following Sir Rupert Jackson’s “Review” do apply to defamation and privacy cases. They include more muscular case management by the courts to deal with cases proportionately, costs budgeting and costs management, which involve the parties and the court controlling the level of recoverable costs at the start of the proceedings (see CPR 3.12(1)), costs-capping (by virtue of PD 3F para 1), and new provisions which limit the level of overall recoverable costs to what is proportionate [emphasis added] (pursuant to CPR 44.3(2)(a)).”
This in in the context of the fact that success fees and ATE premiums remain recoverable in defamation cases.
The Supreme Court appears to have proceeded on the basis that proportionality applies to both. It is not clear from the judgment as to what extent argument was heard on this issue and the relevant transitional provisions.