In 'A proportionate response?' District Judge Rawkins appears to regret that 'the valuable demarcation between solicitor/client costs and party/party costs has been eroded so that there is no real practical distinction' (see [2005] Gazette, 30 June, 14). In theory, the distinction was abolished with the introduction of the standard basis in 1986. This was the same as the old 'common fund' basis, which allowed the recovery of a reasonable amount in respect of all costs reasonably incurred.

Nevertheless, many district judges continued to follow the pre-1986 approach, distinguishing between 'solicitor and client' costs and 'party-and- party' costs on grounds not expressly set out in the rules. The introduction in 1999 of the test of proportionality (which usually applies to the assessment of costs recoverable between the parties, but not to solicitor and client costs) brought in a formal demarcation that did not previously exist.


Applying the test of proportionality is difficult precisely because it conflicts with the requirement to do justice. If it is accepted that a successful claimant is entitled to full restitution, including his costs, why should he have to bear part of those costs himself and give a discount to the wrongdoer?


Peter Burdge, Maritza Legal Services, Clevedon, Somerset