The sense of proportion

Lawyers may not be best known for their acute sense of proportion, and perhaps least of all when drawing up their fee invoices. Nevertheless, the Civil Procedure Rules have introduced a fundamental sense of proportion – known in legal terms as “proportionality” – to the handling of every case. And the principle makes eminent good sense.

The rules say that regard must be paid not only to the value of the case, but also to its importance, to the complexity of the issues and even to the financial position of each party. But there is not a great deal of other guidance in the Civil Procedure Rules to indicate the exact meaning of proportionality or how it is to work. A glance at some recent cases might help to shed some light on the subject.

The most obvious example of the rules’ application is in relation to the costs of conducting a case. The courts will now award only such costs as are “reasonably incurred and reasonable and proportionate in amount”, having regard not only to the value of the claim but also to the conduct of the parties.

If a party spends in excess of a proportionate sum in pursuing or defending its case, then even if it wins, costs will be limited to a proportionate figure. As a rule of thumb, it has been suggested that the costs to each party should not, in the usual course of events, exceed 10% of the disputed figure. However, practice direction 44 explains that a fixed percentage cannot be applied in all cases to the value of the claim, and the proportion of costs is likely to be higher in a modest claim than in a large claim.

In other words, costs should not necessarily increase in direct proportion with the value of the case.

This principle of proportionality can have a number of repercussions on the conduct of a case. Mars UK Ltd vs Tecknowledge Ltd established that parties will be penalised on costs if they throw into their pleadings every conceivable complaint they can dredge up, whether strictly relevant or not, simply to add weight to their argument in a manner more akin to a marital row than a professional statement of case. Costs were only awarded in respect of those specific issues on which the parties succeeded.

The proportionality principle also means that parties cannot expect to spend days in dusty basements rummaging through countless archived files if that search would be out of proportion to the amount claimed. A party must still search for and produce documents relevant to the case, but only in so far as that search may be considered proportionate to the sums in question.

However, it is important not to gain the impression that the principle of proportionality relates only to the balancing of the costs of a case with the sum in dispute.

Recent case law has established that the principle also applies to the behaviour of the parties in conducting their cases and the sanctions a court should impose on a party for failure to conduct its case properly.

In Tekna Design Ltd vs Davenport Properties Ltd in November last year, the Court of Appeal decided that the court of first instance’s decision to strike out the case was a disproportionate and excessive reaction to the claimant’s delay and its breach of other court rules, as there had been no actual prejudice to the defendant's case.

To go a step further, in the case of Gerard McCann vs Wimpey Construction, again in November of last year, the Court of Appeal decided that even where the defendant had been prejudiced by the claimant's delay, it would be disproportionate and unduly harsh in the circumstances to strike out the action in order to avoid the defendant having to pay the small sum of increased damages caused by the claimant's delay.

With this case, the ruling made particular reference to the fact that the claimant had given an undertaking to reimburse the defendant in respect of any increased liability it might have as a result of the delay.

November 1999 was a busy time for the Court of Appeal in dealing with proportionality. In another case of that month, Becker vs Baileys Shaw and Gillet, the court determined that it was not reasonable to refuse to grant an extension of time to the claimant – such were the circumstances that it would have meant that the action was being effectively struck out.

The court considered that such an extreme sanction would have been unreasonable and disproportionate.

Sanctions will therefore not simply be imposed by the court as a matter of course – it will consider whether and to what extent the other side has been prejudiced, and ask whether the prescribed sanctions are truly in proportion to the circumstances.

Proportionality is not a new concept to civil procedure, in that the courts have always been able to take it into account when dealing with specific cases. The real difference now is that the Civil Procedure Rules have highlighted the issue, so that proportionality (for which, in many cases, we can read “old-fashioned common sense”) is being taken up and enforced by the courts as never before.

Anyone who has read Charles Dickens’ Bleak House will remember how he severely condemned the laborious procedure, delays and expense of the English legal system, where legal fees could dwarf the disputed sum and drive litigants to utter despair.

Dickens must have cheered from the grave as loudly as any of us when the new Civil Procedure Rules finally became law, making proportionality a cornerstone of the system.

The only thing he must still be wondering is why on earth it took us so long to remedy an injustice that he was telling us about 150 years ago.