Kerry Underwood

PROPORTIONALITY AND NON-FINANCIAL MATTERS

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In Various Claimants v MGN Ltd [2018] EWHC 1244 (Ch) (24 May 2018)

the Chief Costs Master dealt with costs and costs management issues in the Daily Mirror Hacking Litigation which is not subject to a Group Litigation Order under CPR 19.10 to 19.15, but its structure is similar, with Individual Costs and Common Costs.

Template Costs Budgets apply to Individual Costs and Common Costs, with the template to follow Precedent H in so far as possible.

Two of the claimants applied for an Individual Bespoke Budget.

The main points of interest in the judgment concern proportionality, with the Costs Judge saying that:

 

“…when the proportionality factors are put together, the financial value of the claims proves to be relatively unimportant because of the wider factors.”

 

The Costs Judge held that in such cases, reasonable costs will be proportionate.

 

“22. I do not find it easy to apply a principled approach to proportionality in relation to these budgets. I can infer, for what it is worth, from the parties’ agreement to having bespoke budgets that they consider larger amounts of costs than those in the template budgets will be reasonable and proportionate. It seems to me that the only principled way of applying the test in these cases is to have only very limited regard to the possibility that proportionality may produce a cap that will limit what would otherwise be a reasonable figure. This is what the parties have done in their submissions. To take any other approach in this bespoke litigation risks the court merely applying arbitrary limits because there is no financial reference point for proportionality.

  1. It seems to me that the wider factors I have summarised, in particular the public importance and test case factors, will have the effect that if the costs are reasonable they are proportionate. That conclusion chimes with the approach the parties have adopted and avoids the court wielding a concept of uncertain application.”

 

The key other factors here were the value of the non-monetary relief in issue in the proceedings and the wider factors in the proceedings, such as reputation or public importance – see CPR 44.3(5)(b) and CPR 44.3(5)(e).

Effectively the Costs Judge has restored the test in

Home Office v Lownds [2002] EWCA Civ 365 (21st March, 2002)

when considering proportionality in cases involving more than just money.

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Written by kerryunderwood

July 10, 2018 at 9:41 am

Posted in Uncategorized

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