The P word

The concept of proportionality is spreading like a virulent rash over the body of English law. The entire canon of Jackson material can be condensed into that solitary word. Litigation must be conducted in a manner and at a cost commensurate with a proportionate approach. What is, perhaps, less obvious, is that in recent times proportionality has been invoked to dismiss claims or to prevent them from being pursued.

Proportionality in practice

Let us take the recent decision of Tugendhat J in Citation plc v Ellis Whittam Ltd [2012] EWHC 549 (QB), [2012] All ER (D) 174 (Mar). This was an action for slander and malicious falsehood between two rival companies. The claimant made it clear that it had not suffered actual damage, and, as a company, it was incapable of recovering damages for distress. Since the defendant had accepted that it must never repeat the words complained of, the court concluded that litigation