The Practical Lawyer


Proportionality – planning

These are the words of a county court judge in 2001 – they remain equally valid today:

‘In modern litigation, with the emphasis on proportionality, it is necessary for parties to make an assessment at the outset of the likely value of the claim, and its importance and complexity, and then to plan in advance the necessary work, the appropriate level of person to carry out the work, the overall time which will be necessary and appropriate to spend on the various stages of bringing the action to trial, and the likely overall cost.’

Those county court words were specifically approved in a recent costs case involving a clinical negligence claim. The claimant recognised that damages would not exceed £5,000, and settled for £3,250; he then sought costs of £72,000, which on provisional assessment were reduced to £24,000. What caused particular problems for the claimant was that he had been unable to produce any evidence of planning, or consideration of the costs to be incurred, and that approach did not even change when reviews indicated that previous estimates of damages were likely to be optimistic. Accordingly, ‘notwithstanding the solicitor’s knowledge of the low value of the claim, they proceeded to instruct expensive medical experts to prepare costs, the costs of which totalled almost £20,000’. Likewise, there was no planning over the ATE policy; just because it was insurance those solicitors typically used they ‘would have been aware that there are many other insurance products on the market that may have been more appropriate to this particular low-value case, but no attempt was made by them to investigate this’.

What the case does, therefore, is to emphasis the importance of ‘planning’ at the ‘outset’ of the case. If there is no evidence on the file to show that this was done, then it will be far more difficult to show that costs are ‘proportionate’.

As an aside, this particular judgment also supports the view that ATE premiums are subject to the proportionality test (although it seems the CA will rule on this later this year). But, what is clear is that, even in routine litigation, lawyers cannot just follow their usual procedures without considering whether that will lead to a disproportionate outcome. See commentary on Rezek-Clarke v Moorfields [2017] EWHC B5 (Costs) in [2017] SJ 14 March 29.


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