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Provides a practical overview of the changes to costs and funding
I was part of the working group convened in 1999 to assist the Rules Committee in preparing the draft of the Costs Practice Direction. I remember keen debate about the extent to which proportionality to the issues should apply to the success fee as opposed to proportionality to the risk run by the lawyer as it reasonably appeared to them at the time. As the Supreme Court say, if the former “this would have been likely to discourage them from entering into CFAs”.
“11.5 In deciding whether the costs claimed are reasonable and (on a standard basis assessment) proportionate, the court will consider the amount of any additional liability separately from the base costs.
11.9 A percentage increase will not be reduced simply on the ground that, when added to base costs which are reasonable and (where relevant) proportionate, the total appears disproportionate.”
“the system could have incorporated provisions requiring consideration of all circumstances including (a) the proportionality of the total of base costs and uplifts and premiums, (b) those of the payer (such as his means, whether he was insured, the importance of fighting the case and his reasonableness in fighting the case).”It seems likely that the losing defendants will now take the case to the European Court of Human Rights fortified by the trenchant views of the minority. However, even the minority accept that where a class of defendants can spread the risk through insurance this is less likely to require correction. So it would seem that even if the European Court of Human Rights intervened, any revision may only be applied to uninsured small businesses (and indeed all members of the court pointed out that this was not yet actually determined on the facts here). The MGN case took more than five years to be determined by the European Court of Human Rights, so don't hold your breath. By the time the case is decided there will be only a tiny number of pre-Jackson cases still in the litigation system.