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4.5
The proportionality facet
"Proportionality" as introduced by the overriding objective in CPR 1.1(2)(c) involves
the court being required to deal with the case :-
"...... in ways which are proportionate
to the amount of money involved;
to the importance of the case;
to the complexity of the issues; and
to the financial position of each party."
The problem encountered is that "proportionality" bears different meanings in
different contexts, and has sometimes generated uncertainty as to how it should be
applied.
(a)
This is illustrated by Lownds v Home Office [2002] 1 WLR 2450 (Practice
Note), discussed above in Section 2, where considerable uncertainty had sprung
up as to how "proportionality" ought to be applied when taxing costs in a case
where the costs incurred had much exceeded the claim amount.
(b)
Callery v Gray [2002] 1 WLR 2000
provides another example. The concept
of proportionality was here again relevant to taxation, with the court having to
decide whether costs had been "proportionately and reasonably incurred."
Much controversy arose as to how these concepts should be applied to the
regime of "after the event insurance" effected in tandem with conditional fee
agreements.
Was it reasonable and proportionate to incur an insurance
premium at the very outset given that the case might rapidly settle and so render
the insurance unnecessary The extent of the uncertainty was indicated by Lord
Hoffmann who recounted that the House of Lords had been told that no less
than 150,000 cases were awaiting the outcome of the decision.
Notes
Discussed further in Section 25 below.
See CPR 44.4(2) and CPR 44.5(1).
Explained in Section 25 below.
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