Kerry Underwood

PROPORTIONALITY AND NON-FINANCIAL MATTERS (2)

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In Various Claimants in Wave 2 of the Mirror Newspapers Hacking Litigation v MGN Ltd (unreported), 3 August 2018, (Senior Courts Costs Office)

following  judgment in “Wave 1” of the phone-hacking litigation the Senior Costs Judge has ruled on the proportionality of ten claimants’ costs in “Wave 2” of the litigation, applying the post April 2013 test.

The costs were agreed as reasonable and the issue was proportionality, and as the master observed, that is unusual.

The same factors were involved as in the wave 1 cases.

 

He held:

 

  • Sums in issue: “Sums in issue” reflects the value of the claim as viewed by the parties during the currency of the claim and, intentionally, is not as narrow as the sum awarded or agreed.

 

Although, by Wave 2, the court’s approach regarding damages was known, uncertainty remained regarding the number of articles individual claimants could prove to have been the result of phone-hacking.

 

  • Value of non-monetary relief in issue: Again, “in issue” refers to what is claimed.

 

Injunctions, undertakings, statements in open court and apologies were of substantial value: the claim was not just about damages.

 

  • Complexity: Although Wave 1 resolved the methodology for calculating damages, these claims were not “straightforward”.

 

The need to establish which articles derived from phone-hacking, the number of interlocutory hearings and the estimated trial length meant that these were not “run of the mill” cases.

 

  • Additional work generated by the conduct of the paying party: This was “hard-fought litigation with fairly major interlocutory skirmishes” but no significant additional work was caused by the defendant’s conduct.

 

  • Wider factors: The wider factors in the Wave 1 claims also applied here.

 

The cases were of significant public importance: the number of people whose privacy was invaded, and the “deplorable conduct” of the defendant made the claims of continuing public interest and importance.

 

The claimants’ reputations were involved, and there was a degree of vindication (although less than in Wave 1).

Even in two cases where the agreed reasonable costs exceeded the agreed damages, the Master held that the reasonable costs were not disproportionate.

The fact that two claimants’ costs were higher, as they had instructed solicitors not acting for other claimants in this litigation, might have gone to reasonableness but was not relevant to proportionality.

 

The appropriate Civil Procedure Rule is set out in my recent blog Proportionality and Non-Financial Matters.

 

The Original blog first appeared on the Practical Law Dispute Resolution Blog on 30 July and I am grateful to Practical Law for this further information.

 

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Written by kerryunderwood

August 23, 2018 at 8:10 am

Posted in Uncategorized

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