“In my judgment, the Claimants are right that it is wrong in principle for a party to use the CCO regime, in effect, as a proxy for the abuse of process jurisdiction. Similarly, it would be wrong for the court to impose a CCO in order to punish a party who has lawfully brought proceedings in this jurisdiction because the court thinks that they should have issued their proceedings in a different jurisdiction…. the imposition of a CCO would almost certainly have the effect of forcing the Claimants to abandon their claims. If the Defendant considered that the various reasons put forward … meant that the continuation by the Claimants of these proceedings would be an abuse of process, then the Defendant should have persisted with its strike out application.”
In setting the reciprocal cap, it is necessary to bear in mind that in judicial review a claimant’s costs can generally be expected to be higher than a defendant’s (assuming representation of equivalent seniority). This is because the preparatory work of collating the evidence supporting a claim and of formulating the submissions to advance it is usually (though not always) more time-consuming than the work of producing responsive submissions and evidence.
This was the first appeal in which the recoverability of inquest costs in civil claims has fallen to be considered since introduction of the Jackson reforms. It followed an assessment of costs by Deputy Master Keens in the SCCO when he allowed the sum of £88,356.22 as a against an original claim of £122,000 excl VAT. The claim was for damages for breach of Article 2 of the European Convention on Human Rights, negligence and misfeasance in public office following the death of Ms Jones who became ill at a police station.
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 detailed assessment, including that the base fees, viewed globally, were not disproportionate.