Proportionality – a disproportionate concept

So the Court of Appeal has promptly decided that lives were better spent doing anything other than listening to a couple of lawyers prattle on about money, thereby declining the poison apple that is an argument on costs. Less an opportunity missed and more ratification that the future of the costs industry is safe at least until the next round of reforms.

As further endless opportunities present themselves for lawyers to spend piles of much loved cash, arguing over their, well, much loved cash, one might be forgiven for concluding that the present reforms authored by Sir Rupert Jackson, formerly and presently of Leading Costs Chambers 4 New Square, has rather missed the target of the promotion of access to justice.

Admittedly proportionality, it appears, is probably the most impossible of concepts to define. The previous regime did little in the pursuit of this glistening grail with the introduction of the concept of necessity. Unfortunately, as it transpired, the distinction between the concepts of reasonableness and necessity may have been clear when asking if one should donate a kidney, but became rather more murky when addressing whether the costs of conducting litigation is proportionate. So perhaps by accident, or perhaps cleverly and with cunning, the present reforms have taken the ingenious step of not defining it at all.

In May v Wavell the costs claim arrived through the costs office letter box at a bulging £200,000. Following an item by item assessment Master Rowley popped a wet letter-counting finger in the air and reduced the “reasonable figure” arrived at from circa £100,000 to £35,000, with the resounding determining factor for his consideration being damages, which had been agreed at £25,000.

Judge Dight on the other hand determined that the new proportionality test was not a “blunt instrument” with which to reduce reasonable costs to a proportionate level, and promptly waved his perhaps slightly less haphazard digit resulting in a ‘proportionate’ figure of £75,000, unfortunately leaving to our imagination the small matter of what learned and wise algorithm had been invoked.

Instead the Judge remarked helpfully that there was ‘very limited authoritative guidance’ and ‘such that there is does not all appear to lead in the same direction’. So in the absence of guidance, or at least helpful and clear guidance, it is fair to conclude that Mr May was on the receiving end of a “best guess”!

It is important to note that the true cost of litigation had been already been determined. The Judge had already concluded that a reasonable amount to have spent on this litigation was £100,000. Indeed, Mr May probably has a sizeable ‘wod’ stashed in his guitar case and it may have been the case that his lawyers invoice at £200,000 was unreasonable to the tune of £100,000. But why dock Mr May again, be it circa £65,000 or just £25,000.

How does this decision have any bearing on access to justice. It doesn’t, its utter nonsense. Proportionality has simply served to rob a litigant of his damages. It represents nothing more than an attack on successful parties for doing nothing more than taking reasonable steps to ensure victory.

Whilst the do-gooders will leap to the defence of the system, harping on about bringing the costs of litigation down, they should spend 5 minutes at the business end of a legal practice. Lawyers are unlikely to cancel the pool cleaners for the sake of justice. Lawyers will do what all good businesses do – if you pay less, you get less. If you order a £3 turkey club sandwich and you only pay £1, don’t expect the turkey to be turkey.

Complex matters will be staffed with pubescent half wits and services standards and client care will fall. It will be a case of no more reasonable costs for you ‘Mr Client’, you will now be the proud recipient of Crap Legal LLP, half-arsed advice for a new proportionate world. Of course, the alternative is litigation where the winner ends up being the loser but surely this is the exact opposite of access to justice.

So, some advice to Mr Justice ‘Third Time Lucky’, forget proportionality! It’s complete nonsense.

Finally and importantly, the concept of proportionality removes the ability of costs professionals to predetermine with any confidence, the outcome of a detailed assessment. That will only lead to endless expensive arguments on costs…and no-one wants that – or do they?

“As further endless opportunities present themselves for lawyers to spend piles of much loved cash, arguing over their, well, much loved cash, one might be forgiven for concluding that the present reforms authored by Sir Rupert Jackson, formerly and presently of Leading Costs Chambers 4 New Square, has rather missed the target of the promotion of access to justice.”

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