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The major failings of proportionality tests are (1) what is at stake for one party is often different from what is at stake for the other, (2) what is at stake is often more than money and (3) the test is applied at the end, so no-one knows what the proportionality cap is until the case has finished.

Boundary and similar disputes are typical of no. 2. Problem No.3 could be sorted out by old style scales of costs, including fixed costs. It looks like that is the way it's going.

Robert Morfee

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