The Court of Appeal decision in BNM v MGN Ltd [2017] EWCA Civ 1767 manages to be both very important and a massive anti-climax.
The decision is important because it finally resolves the issue of whether post-1 April 2013 additional liabilities are subject to the old or new proportionality test. The answer is that the old test applies (contrary to Master Gordon-Saker’s original decision). Although this will potentially have a large impact on the costs recoverability of some big-ticket costs claims, this is mainly limited to a dwindling number of old cases (4½ years and older).
What the judgment entirely fails to do is give any wider guidance as to how the new test should be applied. Even on the facts of the case, we still do not know the answer as the matter is to be referred back to Master Gordan-Saker for him to have another go.
