The proportionality rule is working fairly, but the lack of opportunity for the Court of Appeal to give guidance on the issue is a ‘drawback’, Lord Justice Jackson told the Gazette in an interview last week.
The judge said a ‘cluster’ of cases was needed so that the Court of Appeal can address the topic.
He said: ‘What needs to happen is a group of appeals, where one or other party is dissatisfied with the assessment of costs, to come up collectively to the Court of Appeal, presided over by the MR or a senior judge, where the court can give guidance on the rule.
‘I don’t think that we want a great long practice direction supplementing rule 44.3 (5)… There would be endless arguments about the interrelationship between the rule and the practice direction. Then you’ll have authorities dealing with the interrelationship between the rule and the practice direction and all will become too complicated.
‘The fact that there haven’t been cases coming up requiring direct guidance on the rule shows that, by and large, it’s working satisfactorily.’
He added: ‘The wording of [the proportionality rule] occupied me for hours and hours and days and days. I had been through a lot of different drafts and run lots of different drafts through my assessors. That rule captures the essential factors for determining what costs are proportionate.
‘Among all the criticisms of the reforms, no one has suggested any improvement to that wording. You’ve got to have regard to the value of the case or the sums in issue, or the value of the property or rights in issue. And you’ve got to have regard to complexity, you’ve got to have regard to people messing the other side around and so on. The rule identifies all the relevant factors. [But] I regret that there has not yet been a cluster of test cases… I would dearly like to see all going well on this front. But I accept that the lack of any Court of Appeal guidance in a cluster of these cases is a drawback.’
Referring to the the recent BNM decision, which had been expected to offer guidance on proportionality, Jackson noted that ‘in the end the case didn’t turn on that point’.