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Court Rulings Provide Further Guidance on Proportionality and Fundamental Dishonesty - Ieuan Jones, Ashfords

23/03/18. There have been two recent costs decisions in two areas of litigation that have been subject to much controversy since the recent rule changes.


First, there was a ruling on proportionality in the Central London County Court, on appeal from the Senior Courts Costs Office. This came only weeks after the Court of Appeal's Judgment in BNM -v- MGN Ltd [2017] EWCA Civ 1767, which disappointed many by not giving firm guidance on how to apply the new proportionality rule in CPR 44.3(5). Now, there at least appears to be a potential way forward.

Celebrity couple Brian and Anita May brought a private nuisance action against a neighbour, arising out of noisy and intrusive construction works going on next door. The Mays initially claimed for between £50,000 and £100,000, but then accepted a Part 36 offer of £25,000 prior to the filing of the defence. Costs were just over £208,000.

At first instance detailed assessment, Master Rowley reduced their costs to £35,000 plus VAT. He did this by following the example in previous assessments, where first of all there is an assessment of the bill's reasonableness on an item-by-item basis, before further reducing the overall figure to one he considered proportionate.

Now, HHJ Dight CBE and Master Whalan have ruled on appeal that the original Master misapplied and misinterpreted the proportionality test...

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