We now have the Court of Appeal’s Judgement in BNM v MGN regarding proportionality.

Any hopes we had of receiving some guidance on how to apply the “new” proportionality test have unfortunately gone unanswered and we are all still in a position where it is difficult to know how an assessment result will go once the court applies the proportionality test to a bill of costs.

It is alarming to note that the Court of Appeal’s failure to provide anything substantial in this regard means that not only do the parties have no real guidance on how the test should be applied, but the courts therefore also have no real guidance as to how to apply it.  It is therefore likely that we will continue to see inconsistent and unpredictable result for the foreseeable future.

There was some small ray of light in that the Court of Appeal held that the “old” proportionality test applied to any additional liabilities that are recoverable from the paying party.

For the time being it is unfortunately a case of “watch this space!”

The full judgement can be found at