Dominic Regan proposes a simple solution to the ongoing costs fiasco—proportionality
No party has ever paid out costs to an opponent unless either those costs have been agreed or the court has determined what should be paid.
The recent Jackson report comes up with myriad possibilities to control the level of costs (see Civil Litigation Costs Review, Preliminary Report by Lord Justice Jackson).
However, for a decade there has been a simple weapon which has hardly been deployed—proportionality. Costs are almost invariably awarded on the standard basis and CPR 44 (2) dictates that such costs be proportionate.
Ambitious claims
Where does the blame fall for the failure to apply proportionality? Some judges have done sterling work. When sitting as the designated civil judge in Birmingham His Honour Alistair MacDuff regularly waded in and slapped down ambitious claims for costs. Little wonder that he was elevated to the High Court bench. The current designated civil judge in Liverpool, His Honour Judge Stewart QC,
