An interesting aside from Senior Costs Judge Master Gordon-Saker in BP v Cardiff & Vale University Local Health Board  EWHC B13 when considering a case with a pre-1st April 2013 CFA where the new proportionality test applied to work done after 1st April 2013:
“On behalf of the Defendant Mr Kiernan told me that it would not be fair to include any additional liabilities when considering the proportionality of the costs allowed for work done after 1st April 2013. He relied only on the figure of £138,202.97. As the point was not argued, I reach no conclusion as to whether when considering under the new rule the proportionality of costs incurred after 1st April 2013 additional liabilities should be taken into account.”
This suggests the point is open for argument.
The rules certainly do not appear to expressly address this point.
CPR 48.1(1) states:
“The provisions of CPR Parts 43 to 48 relating to funding arrangements, and the attendant provisions of the Costs Practice Direction, will apply in relation to a pre-commencement funding arrangement as they were in force immediately before 1 April 2013, with such modifications (if any) as may be made by a practice direction on or after that date.”
The old Costs Practice Direction at 11.5 read:
“In deciding whether the costs claimed are reasonable and (on a standard basis assessment) proportionate, the court will consider the amount of any additional liability separately from the base costs.”
If this survives, so far as pre-1st April 2013 CFA’s are concerned, it would seem to suggest under the new proportionality rule additional liabilities should not be taken into account. Master Gordon-Saker’s comments perhaps imply the matter is not quite so straightforward. Or, perhaps, he takes the judicial line that there is nothing to be gained from expressing any opinion where it is not entirely necessary.