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Anon at 10.33; because in a costs shifting system damages are assessed solely to compensate for the loss suffered by reason of the original wrong. Outside personal injury cases (where the Judicial Studies Board gives some guidance) assessing the likely damages in advance can be difficult, and the cost of bringing the claim may outweigh the damages awarded. If 'reasonable' costs are recoverable, a party can recoer all their reasonable costs. The paying party has the comfort of knowing the court will not allow unreasonable costs.

With proportionality however, the costs can b capped at a figure with regard to the damages awarded, even though that figure may not be capable of being estimated in advance with sufficient accuracy. Thus a claimant who has suffered damage and who is advised that irrecoverable costs may exceed the compensation awarded (because of proportionality) has to decide if he can take the risk that suing the wrongdoer will leave him yet worse off. That is a bar to justice, unless and until different costing, recovery or insurance models are devised, and allowed, so as to fill the gap.

Proportionality also encourages defendants to 'game' the system, by putting the claimant to additional expense which may be reasonable, but could be disproportionate.

Litigation has never been a cheap game, but the way to change this is surely not to load additional risk on claimants and deter them from making claims at all. Better to simplify the system for claiming, and reduce the costs of legal practice.

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