Musician Brian May has hit out at the application of the new proportionality test in the wake of his recent case in the Senior Courts Costs Office, describing it as a “mockery of justice” and arguing that “it’s likely to make it almost impossible for the man in the street to fight back for justice against the bullies who trample all over him”.
Last month, in a private nuisance case for which he and his wife accepted £25,000 in settlement, Dr May saw Master Rowley initially reduce their £208,000 costs bill  to a shade under £100,000 on an item-by-item assessment, and then cut it to £35,000 on the basis of proportionality.
Writing in The Times today, Dr May explained the problems caused by the owner of one of the houses on his street deciding to excavate a basement two stories deep.
“The works have until now gone on for three years, causing all of us immense distress. There has been excruciating piling-rig noise, dust, vibration from heavy excavation equipment, endless traffic in the street, six days a week – and still there is no sign of it stopping,” he said.
“I sued the developer of the property, Wavell Group Plc, and its owner, Farid Bizarri, for the loss of our quality of life – for years now it has been impossible for us to relax in our gardens, and there is no place inside the house, even with triple glazing, to get away from most of the noise that this development has generated.
“It has taken endless hours of researching, documenting, taking acoustic readings, having meetings, employing experts to quantify the disturbance, which has been massive, and putting together a case for compensation. It’s all stress and time eaten up, which I didn’t ask for in my life… I’m a musician.”
He said the upshot of taking action was that “by trying to obtain some kind of compensation, I spent £208,000, received £25,000 in damages, plus a derisory £42,000 in costs, and end up being out of pocket by about £141,000.
“Where’s the proportionality in that? Where’s the justice? This absurd proportionality rule makes it impossible for any wronged party to protect himself.”
Dr May also referred to the Senior Costs Judge’s recent ruling in BNM v MGN , in which he halved the costs of a privacy action that he had deemed reasonable after a line-by-line assessment. “So, as in my case, the £20,000 compensation for the newspaper’s outrageous behaviour was dwarfed by the £158,000 of costs that they did not have to pay. For most people, finding this kind of money would be impossible.”
In the May case, Master Rowley said lawyers should tell clients in cases where costs significantly exceed damages that the new test of proportionality means they would receive “no more than a contribution” to those costs if they are successful.
“It may be that such advice proves to be a driver for the costs to be reduced or for alternative dispute resolution mechanisms to be explored,” he said.
Dr May responded: “There is no logic to any of this. Who would benefit from such a ‘driver’ effect? Certainly not the wronged citizen who is looking for redress. Does this piece of information actually cause his lawyer to reduce his fees? Or is the implication that the citizen should find a cheaper advocate?
“As for ‘alternative dispute resolution mechanisms’ – I’d like to hear Rowley’s suggestions for what they might be. Once one has spent three years trying to reason with the other side, I can assure him there is no other ‘mechanism’ for looking for justice, other than going round and punching them in the face. Is that what he’s advocating?
“This proportionality rule is a nonsense, and makes a mockery of justice; it is yet another way of ensuring that the super-rich can do anything that they like, including destroying the quality of life of those around them. What was in the mind of the people who introduced this ridiculous rule of proportionality?”