Blog - Friday 4 October 2013

Weird and not wonderful

This case was reported this week and there is a lot of nonsense being talked about it, I thought I would add my two penneth:

http://www.bailii.org/ew/cases/EWHC/TCC/2013/2923.html  

The Learned Judge in the case, doesn’t seem to understand proportionality.  That is absolutely no criticism of him, proportionality whilst being the new buzz word of the judiciary – is (along with hourly rates) one of the most misunderstood issues.

CPR.r.44(5) states:

(5) Costs incurred are proportionate if they bear a reasonable relationship to –

(a) the sums in issue in the proceedings;

(b) the value of any non-monetary relief in issue in the proceedings;

(c) the complexity of the litigation;

(d) any additional work generated by the conduct of the paying party; and

(e) any wider factors involved in the proceedings, such as reputation or public importance.

The sums in the proceedings (the trap 99% of practitioners fall into) is only 1 of the 5 factors.  20% if you are inclined to think of it in those terms.  By refusing to make a costs management order, the Court has simply said “these costs are disproportionate and there is nothing I can/will do about them”.  How is that engaging with the process?  Furthermore, both parties costs were very similar.  

Just another weird and not so wonderful costs budgeting case that demonstrates why its so important to instruct experts.  Now I have plugged the costs industry as a whole and particularly my firm, I’m off for a lovely weekend of drinking proportionately*

* = proportionately in this instance is dependant upon how many goals West Ham concede to Tottenham.