Court of Appeal guidance on proportionality

In a speech given earlier in the year, Lord Justice Jackson recognised that the profession was becoming “impatient” for guidance on the proportionality test from the Court of Appeal.  He concluded:

“The remedy lies in their own hands. The Court of Appeal can only decide the cases which come before it.”

In May v Wavell Group Plc, an appeal at County Court level, a judge reached the questionable conclusion that the wording of the rule that reads:

“Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred”

should be interpreted to mean (I paraphrase here):

“Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred but not by a very substantial amount”

Unsurprisingly, permission was sought to appeal this to the Court of Appeal.

The Court of Appeal refused permission.

You couldn’t make it up.