Proportionality test decision leapfrogged to the Court of Appeal

Ellis: thorny issue

Ellis: thorny issue

Guidance on the operation of the proportionality test is finally in the offing after a high-profile ruling by the Senior Costs Judge was leapfrogged to the Court of Appeal.

The appeal, and a cross-appeal, in BNM v MGN will heard by two Lord Justices and expedited with a time estimate of one day.

The test was deliberately introduced in 2013 without guidance but courts and practitioners have appeared to struggle with how to apply it.

Costs lawyer Andy Ellis, managing director of costs firm Practico, which is acting for MGN, said: “Previously listed in the Chancery division in the first week of December, I suspect most observers will see the leapfrog as the shortest route to the inevitable final destination for this thorny issue.

“The post LASPO test needs interpretation at the higher level – and maybe if expedition means expedition, a pre-Christmas hearing is still on the cards.”

In BNM, Master Gordon-Saker halved the costs of a privacy action that he had deemed reasonable after a line-by-line assessment.

He also ruled that the proportionality test applied to additional liabilities – which are still recoverable in such cases – and that they should be considered together with the base costs.

In the event, he looked at the ATE premium separately and halved that too, even though again he found the premium set at a reasonable level. The ruling was strong attacked by the insurer involved.

The appeal will consider how deeply reasonable costs and additional liabilities can be cut by reference to proportionality.

The solicitors involved are Atkins Thomson for the claimant and RPC for the defendant. At first instance, Simon Browne QC of Temple Garden Chambers was counsel for the claimant, and Jamie Carpenter of Hailsham Chambers for the defendant.

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