Damaging uncertainty about the Jackson rule has gone on for long enough.
On this blog I have complained more than once about the lack of clarity over proportionality. Jackson LJ didn’t want the new rule to be subject to a practice direction, which could be picked apart by lawyers.
Instead, he has always asserted that any fleshing out of the 2013 proportionality rule should come by way of a Court of Appeal judgment – and I don’t think we need to guess whom he envisions giving the lead judgment.
The problem is that we’re now in 2016, and the topic still hasn’t come before the learned lord justices – leaving lawyers and their clients to play a guessing game with a crucial issue that is central to litigation strategy.
Now, at last, there is the prospect of the blindfold being lifted, and lawyers no longer being forced to pin the tail on the proportionality donkey. That’s because at least one first instance decision on the issue will be going to the Court of Appeal, and possibly a second.
As Master Jason Rowley of the Senior Courts Costs Office pointed out at the Law Society’s Commercial Litigation Conference this week, the BMN case is going to the Court of Appeal, and permission has also been sought to appeal in May v Wavell. The two appeals could potentially be heard together.
Both BNM and May are quite tough proportionality decisions in which the claimants found their costs slashed significantly.
Will the Court of Appeal uphold that robust approach, or will it decide that the lower courts have been over-zealous in wielding the proportionality axe?
My own reading of the tea leaves is that the mood in the judiciary is far from forgiving on costs, and it is hard to imagine the Court of Appeal taking a soft line. For example, Jackson LJ refuses to let up on his cost-saving reforms; while the government’s recent Transforming Justice consultation – which puts ‘proportionate’ justice at the core of its vision – was signed off not only by the lord chancellor Liz Truss, but also the lord chief justice Lord Thomas and senior present of tribunals Lord Justice Ryder.
But whatever stance the Court of Appeal takes, let’s just hope it is one thing: absolutely clear. The damaging uncertainty has gone on for long enough – for both lawyers and clients.
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