While the world awaits the Court of Appeal’s decision in BNM v MGN, Mark Balme ruminates on the checkered history of proportionality and reluctantly makes his prediction on the outcome.
Normally I would just wait for the Judgment, but confess to being somewhat amused by the obvious consternation of the Master of the Rolls, when it emerged that the matter had come on without any reference to four other pending appeals. No pressure then on the poor Judicial Assistant who was sent scurrying off during an extended luncheon break to ascertain the nature of the issues in those appeals in circumstances where a Judgment in respect of BNM could potentially bind the COA on those other cases.
I shouldn’t, but I cannot help but mention paragraph 40 in Jefferson v National Freight Carriers, where the COA said: “It is necessary for parties to make an assessment at the outset…and then to plan in advance the necessary work…”
Just goes to show that even the COA can sometimes get in a muddle.
So once the COA had got its tackle in order (how many times have we heard a Judge say that to Solicitors) it was properly considered appropriate to reserve Judgment, pending as I understand it, two of the four appeals which are being heard next week, namely Reynolds v Nottingham University Hospitals Foundation Trust and McMenemy v Peterborough & Stamford Hospitals NHS Foundation Trust.
There were formidable legal teams on either side; MGN had Alexander Hutton QC with Jamie Carpenter, and BNM had had Simon Brown QC and James Laughland.
Now I know this was a case of considerable wider importance, but I wonder whether proportionality was considered by the Solicitors before embarking on the not inconsiderable expense of involving these esteemed gentlemen? From my point of view, any one of these distinguished Barristers was more than capable of dealing with the appeal without a Junior.
Notwithstanding, it all takes me back to Home Office v Lownds, where Lord Woolf CJ said:
“Although this appeal only relates to a detailed assessment of costs in a relatively modest action, it raises issues of principle which have a direct bearing on the policy on which the effectiveness of the Civil Procedure Rules depends. That policy is that litigation should be conducted in a proportionate manner and, where possible, at a proportionate cost.”
Lownds was supposed to be ‘the case’ but arguably it had little if any subsequent practical affect.
So, 15 years afterwards, we are now potentially a little closer to sorting out proportionality in its current guise – albeit some four and a half years after the new test was introduced, and despite there being other aspects of proportionality that the COA will need to consider separately.
It is also worth mentioning that MGN argued that it was not reasonable for BNM to have issued proceedings, which was not something that featured on the original assessment.
It seems to me that if the argument found traction with the COA, then there is the possibility of that issue being remitted back to the Master for consideration. So theoretically BNM could lose the appeal and then suffer further reduction if it was held that the proceedings were unreasonably issued, which in turn would involve proportionality being re-visited again.
So, putting my neck on the proverbial chopping block, my money is on MGN. I think the COA will dismiss the appeal but also dismiss the Respondent’s contention that the proceedings were unreasonably issued.
In simple terms, if additional liabilities are not costs, then what are they?
Mark Balme is an Advocate at Victoria Square Chambers.
To contact him regarding any matter raised in this blog,
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