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.

Case Updates – Part 36


Gamal v Synergy Lifestyle Ltd [2018] EWCA

This case gives another strong indication that Part 36 offers must be clear.

The Defendant made a Part 36 offer in the sum of £15,000 and shortly thereafter made a voluntary payment of £10,000. The Judge found that the voluntary payment, which was made after the date of the Part 36 offer, had the consequence of reducing the Part 36 offer by that sum. The Defendant did not make it clear that the voluntary payment was on account of costs and the Judge commented that the presumption of law is that the payment made was on account of the earlier Part 36 offer.  The voluntary payment would therefore reduce the Part 36 offer unless it was made clear that it was not intended to do so.  Had the Defendant noted this, they would have beaten their Part 36 offer.

A costly mistake made due to an unclear Part 36 offer.

Ballard v Sussex Partnership NHS [2018] EWHC

This case raised some important points about withdrawn Part 36 offers.

In January 2016 the Defendant made a Part 36 offer of £50,000. This offer was withdrawn by the Defendant in February 2017.  The Defendant then put forward a further Part 36 offer of £30,000.  At trial the Claimant was awarded damages of £23,315.13.  At first instance, following strong arguments made by the Defendant, the Judge ordered that the Claimant pay the Defendant’s costs from the date of expiry of the withdrawn offer. However, this decision was overturned due to the Defendant’s second offer stipulating that they would be liable for the Claimant’s costs up to 1st March 2017.  Accordingly, the Appeal Judge ordered the Defendant pay the Claimant’s costs up to 1st March 2017.

What makes for interesting reading is that had the Defendant not stipulated that they would pay costs up to 1st March 2017 then the Claimant may have had to pay costs from the date of the withdrawn offer.  Withdrawn offers therefore continue to be relevant for the purposes of costs proceedings.

Decisions, Decisions, Decisions – A look back at 2017 and what to expect in 2018

Harrison v University Hospitals Coventry & Warwickshire NHS Trust [2017] EWCA/Merrix v Heart of England NHS Foundation Trust [2017] EWHC