The Civil Justice Committee Working Group on Technical Aspects of Jackson Implementation has published its initial paper on possible options for implementing changes to proportionality, Part 36 Offers and Qualified One-way Costs Shifting.
Rachel Rothwell, writing in the Gazette, described the working group as “comprising some of the most talented and experienced practitioners in the field of costs”. A view that the Association of Costs Lawyers wouldn’t necessarily share.
I’m putting my money on them picking Option C for proportionality:
The hybrid model. Under this model both reasonableness and proportionality are considered at the same time when ever an item or category of costs is being assessed / budgeted. Unlike Option A and B, proportionality (and the new rule) is applied as the items of the bill or categories of costs are being assessed alongside considerations of reasonableness. There is then a residual long stop for the court to reduce the figure still further if the proportionality rule justifies it. This will be applied in only rare / exceptional cases. Like Option A, the application of the long stop will be in exceptional or rare cases only, but this time not because reasonableness would have catered for disproportionate costs (as in Option A) but because inevitably where a court has assessed items as being reasonable and proportionate during an assessment it will only be in exceptional or rare cases that the outcome of the assessment results in a disproportionate figure.
In real terms, this will mean no change from the current position for the vast majority of cases. Proportionality will remain a damp-squib with no impact on the amounts allowed by the courts, thus undermining one of the key Jackson proposals.