Proportionality has ruined £10-20k cases

Cases sneaking into the fast track may be costs bearing, however the chances of a party getting to trial with costs being lower than damages is unlikely.

We have a £11k damages case involving expert evidence costing £2,500.00 for the review of documents, site visit and expert report. Two other experts quoted higher fees than this as it is a specialist area.

The key witnesses need to provide long and detailed statements, and the disclosure involves historic maintenance records. The defendants will need to provide a notable amount of disclosure too which will need to be scrutinised.

The defendant is intransigent and their case handler at the defendant’s insurer has decided to run this to trial. We estimate our costs to trial to be £17k on this £11k claim. Proportionality is not going to be in our client’s favour, but we will not succeed without the expert evidence and witness statements which supplement. We also know that disclosure will hurt the other side more than us.

To make things worse, the defendant’s defence positively advanced something silly. We therefore are obliged to file a Reply. This is further costs which are necessarily and reasonably incurred, but likely to be disproportionate. Further, I anticipate the other side will not like the Reply (which does not provide anything “new”) and will insist we amend our Particulars (which is unnecessary). We shall tell them to apply to the Court if they feel so obliged, which they will not do; but the individual stubbornness of their ‘case handler’ means they will probably prepare a long Part 18 Request which will need to be batted away without much difficulty. More costs.

We do not fear the trial. Our concern is summary assessment of our costs being something silly like £8-9k and taking a circa £10k hit on our costs. Do we look to our client to make up the difference? Not really as that would extinguish their damages.

Proportionality. Still a load of nonsense 2 years on from Jackson.

Over and out.

Legal Orange

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