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Clyde and Others v Thomson Holidays

20 November 2002
The issues

Costs – proportionality – whether in considering proportionality the Costs Judge should take into account pre-Civil Procedure Rules work.

The facts

14 Claimants were entitled to recover costs from the Defendant. The total bill was £166,387.95. The matter came before the Master on a preliminary issue. The question was, whilst the Rules and the case of Lownds were authority for the view that costs undertaken pre-introduction of the Civil Procedure Rules could not be subject to the proportionality test, did this mean that in assessing a bill which covered both pre and post-Civil Procedure Rules work, the Costs Judge could only consider proportionality in the light of post Civil Procedure Rules work or was he entitled to look at the totality of the bill, in order to decide whether the post Civil Procedure Rules work was proportional.

The decision

1. If the Costs Judge were to look only at post Civil Procedure Rules work and kept out of his mind the expenditure occurred before the 26th April 1999, it would be impossible to reach a considered Judgment as to whether the Civil Procedure Rules expenditure was reasonable and proportionate.

2. It was necessary therefore for the Court to look at the total costs both pre and post Civil Procedure Rules in carrying out the global approach required by the proportionality test. It was clear that when the Court of Appeal had regard to the “amount of costs” in issue in Lownds, that the Court of Appeal had in mind all the costs both pre and post Civil Procedure Rules. In this case, it appeared to be disproportionate considering all the factors that £83,500.00 was spent in post Civil Procedure Rules costs to recover damages of £63,000.00. This was the case even without considering the pre Civil Procedure Rules costs. It would follow therefore that Detailed Assessment of the post Civil Procedure Rules costs would be subject to the dual test of reasonableness and necessity.

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