Proportionality: money isn’t everything

East Sussex Fire And Rescue Service v Austin [2019] EWHC 1455 (QB)

In April 2013 the “old” proportionality test in the then CPR 44.4(2) was replaced by the “new” proportionality test in CPR 44.3(5). The essential difference being that necessity no longer trumps proportionality.

There remain a few cases still being dealt with under the “old” rule. This was one of them.

It was an appeal against decisions made by the Senior Costs Judge, Master Gordon-Saker in the course of a , including that the base fees, viewed globally, were not disproportionate.

Whilst on its face this might be a case of dying relevance, a few observations were made that might be of interest to practitioners working under the “new” rule today.

The Master concluded that in weighing the factors against which proportionality was to be judged it was relevant to take account of the fact that:

  • the Second Defendant had pursued the case against Mr Austin to trial even though his claim was modest in value in comparison with the claims brought by the other Claimants and could have been “picked off.”
  • the way in which the case had been fought, leading to a trial before an experienced judge, reflected that the parties considered the action to be of significant importance.
  • the Second Defendant had taken technical arguments in respect of the validity of regulations and the duty of care. The case was therefore a more complex case than the “run of the mill personal injury case.” The same factors applied in respect of the skill, effort specialised knowledge involved.
  • the sum recovered by the Claimant was relatively modest but was nonetheless a sum of importance to him. Furthermore, the claim was important to him for non-monetary reasons given his experiences on the day of the fire. These were features of the underlying litigation which, it was held, the Master was entitled to take into account in assessing the importance of the case to Mr Austin.

The Hon. Mr Justice Lambert dismissed the appeal finding that the Master had made no error of law and was entitled to conclude that base costs of £275,000 against recovery of £25,000 were not disproportionate in all the circumstances.

For those in any doubt, the judge made clear:

“if the Master were stating that the factors to be taken into account under the current rules were different to the factors to be taken into account under the former CPR 44.5(3), then he would be wrong to do so. The current equivalent provision in the CPR (44.4(3)) is similar to its predecessor… there is nothing about the proportionality assessment itself which is substantially different under the current rules.”

With a massive proposed extension of fixed costs on the horizon this decision serves as a welcome reminder that the amount of money at stake in a claim is not and can never be a reliable measure of proportionate costs. In fact, it is often the least relevant factor in the amount of work that needs to be done. One size does not fit all.

EAST SUSSEX FIRE AND RESCUE SERVICE v AUSTIN [2019] EWHC 1455 (QB)