Legal cost proportionality may sound simple, but within the context of legal proceedings it is very elusive and probably best defined in hindsight. Where the legal costs of one party to litigation are to be paid by the other party to the litigation, then as well as them having to be reasonable they also have to be proportionate to the matters in issue. However, litigants and their solicitors have to advise based on circumstances as they arise and the Court is not supposed to apply hindsight to this process when considering their charges.

Losing parties regularly seek to argue proportionality when it comes to assessing how much should be paid in legal charges. When considering proportionality the Court firstly has to consider the costs as a whole. If they look disproportionate, then it has to be shown that the steps taken were necessary, otherwise they will not be paid for.

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How The Court Assesses Proportionality

The Court has to have regard to the whole of a case as well as a number of specific matters when assessing proportionality as follows:

  • Conduct - This applies as much before court proceedings as during them. It includes steps either party may have made to try and resolve issues and how the other side responded to these.
  • Value - Relates not only to financial terms, but property terms. When the costs are a small proportion of the value of the claim then a different approach is likely to be taken than when the costs are more than the claim itself. However, this must be set against "time spent" below.
  • Importance of matter - This relates to how important the matter is to the parties and introduces a subjective element which may overlap with "value" above.
  • Complexity - A lawyer's job is to make the case and the issues as simple as possible for the Court to deal with. However, the more complex or novel the issues are the more work and therefore the more expense is likely to be incurred.
  • Skill/effort - The more experienced a lawyer is, the more they would normally charge per hour and the faster they would normally be able to do the work. However, a lot can depend on the complexity of the work involved.
  • Time spent - There is a certain amount of time that has to almost inevitably be spent on all successful cases. This can be a helpful starting point when considering proportionality overall.
  • Place/circumstances - Normally you would be expected to travel to see your lawyers. It may be reasonable for them to come and see you, but this would increase the cost and must be taken into account on proportionality.

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