On 'Proportionate' Costs

Abstract

The English costs rules were amended in April 2013 to implement Sir Rupert Jackson’s Costs Inquiry (2010). Proportionality has become (see sections II to IV of this paper) the final determinant when assessing standard basis costs, supplementing but also trumping the pre-existing criteria of necessity (was the relevant item necessary?) and reasonableness (was the item reasonable in amount?). It will be contended in this article that, of the several possible rationales for reducing costs in the name of 'proportionality' (on these rationales see section V), such a reduction is justified only when there is something on the receiving party’s side which has gone procedurally awry, some element of misconduct which warrants a reduction in recoverable costs (section V). And so proportionality should be invoked only when the receiving party has unreasonably conducted the claim in a manner which is too heavy-handed and over-blown, having regard to the case’s scale, or his conduct of the case has been otherwise seriously unsatisfactory.