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“Sums in issue” does not just mean damages awarded in proportionality test

Havers: One of hacked claimants

The ‘sums in issue’ when considering the proportionality of costs is a wider concept than the sum awarded or agreed, the Senior Costs Judge has said.

Master Gordon-Saker was ruling in the latest series of costs cases to arise out of the Mirror Newspapers hacking litigation, involving 10 claimants such as actor Nigel Havers and musician Jackson Scott.

They were among 65 settled claims in the second wave of Mirror cases where the parties were able to agree the reasonable individual base costs (with the exception of Mr Scott’s, which the Master assessed).

Reasonable and proportionate common costs of those claimants who settled their claims after issue were also agreed. In all but these 10, an overall proportionate costs figure was agreed.

The damages for these claimants ranged from £30,000 to £85,000, with reasonable costs ranging from £17,000 to Mr Scott’s £71,000. Agreed common base costs were £7,716 each, but the Mirror only offered between £14,000 and £16,000 to each for total proportionate base costs.

The ruling largely followed Master Gordon-Saker’s decision [1] on 10 cases in the first wave of hacking litigation in June, in which he ruled that the value of the non-monetary relief and other factors at play in the case “justify the conclusion that the costs can be proportionate even though they exceed the damages”.

On this occasion, only two of the claims saw reasonable costs exceed damages, but he said that in any case the sums in issue were but one of the factors and “it seems to me that the court should take into account also the value of the non-monetary relief in issue, the complexity and the wider factors”.

On the definition of the ‘sums in issue’, the master said: “The difficulty with the defendant’s argument that the sums in issue is the difference between the parties, is that in any case there is a point when nothing is in issue (judgment or settlement).

“There is also a point when everything that is being claimed is potentially in issue (before the claim is first responded to). The difference between the parties will vary over the life of the claim.

“It seems to me that the purpose of the words ‘sums in issue’ is to reflect the value of the claim as viewed by the parties during the currency of the claim. It is intentionally not as narrow as the sum awarded or agreed.”

He concluded that the costs claimed in each case were not disproportionate.

The ruling can be found on the website of Simon Browne QC [2], who acted for the claimants.