Proportionality – Case Updates

May v Wavell Group Plc [2016] EWHC (Appeal) (Proportionality)

To cast our minds back in this high profile contentious case, Master Rowley originally reduced the bill of costs on an item by item basis from £208,236.54 to £99,655.74.  He then further reduced it to £35,000 + VAT.

On Appeal HHJ Dight concluded that Master Rowley misapplied the new proportionality test and increased the costs to £75,000 + VAT.  What we can take away from this case is that the proportionality test, subject to the individual circumstances of the case, may not be used as a blunt instrument when the Court carries out their ‘stand back’ approach.

Marcura Equities FZE & Anor v Nisomar Ventures Ltd & Anor [2018] EWHC 523 (QB)

This case put another spin on the proportionality test.  The claim related to unlawful disclosure and use of confidential information where the Claimants sought injunctive relief to protect their information. The Claimants’ cost budget was approved at £449,929.00.   A 5-day Trial was listed but the parties were able to settle, with the Claimants agreeing damages of £35,000.00.

Giving Judgment upon ordering costs, Mr Vineall QC made points in respect of proportionality and stated (at paragraph 55):

“Accordingly I reject the suggestion that the fact that only £35,000 has been recovered displaces the starting point that the Claimants are the successful party for costs purposes.  Nor do I accept the contention that it demonstrates that the costs claimed are disproportionate”

Mr Vineall QC ordered the Defendants to pay the Claimants’ costs.  In respect of an interim payment on account of costs, Mr Vineall QC trod cautiously, and estimated that the total amount of costs recovered by the Claimants would be in the region of £330,000 therefore he ordered an interim payment of £231,000 (70% of the £330,000).

This case is more favourable for Claimants and the Court appears to be taking a more measured approach with proportionality.   Again, however, every case needs to be considered on its own merits.

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