REASONABLENESS AND PROPORTIONALITY: A DIRECT IMPACT UPON LITIGATION DECISIONS

I have been writing for some time about the impact of “proportionality” upon the practice of litigation itself.  One example of this can be found in the judgment of Master James in  Briggs & 598 others -v-  First Choice Holidays and Flights Limited (23/09/16).

THE CASE

The claimants brought an action following a holiday. 447 of the claimants had suffered gastrointestinal injury.  However the remaining 152 had not  been injured but had suffered substandard service.

THE ISSUES

The court was being asked for an interim costs certificate. The Master held that the costs already paid on account were proportionate.  There were general observations about the proportionality of the case generally, however I want to concentrate upon the decision in relation to the 152 “non-injured” claimants.

THE FINDING

The Master held that the non-injured claimants should have used the ABTA mediation scheme.  This would have led to costs of around  £40,000 rather than the £456,000 claimed for this tranche of claimants. It was “neither reasonable nor proportional” to run up a bill of costs of nearly half a million pounds on these 152 matters.  The Master allowed the sums that would have been payable on a ABTA mediation (which varied between £108.00 to £264.00 per claimant).

PROPORTIONALITY AND ITS IMPACT UPON LITIGATION DECISIONS

This is an example of how the principle of proportionality can impact directly upon decisions in relation to which route to take.  It emphasises the point, made several times in recent judgments, that proportionality must be at the “forefront” of a litigator’s mind in the conduct of litigation.

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