The assessment of proportionality is not a pure question of law or fact. It is, as was stated in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 at [12], a difficult and evaluative exercise.
In Mukarkar v Secretary of State for the Home Department[2006] EWCA Civ 1045 Carnwath LJ (as he then was) stated that the assessment of proportionality involves factual judgments which are often not easy, and as to which different tribunals, without illegality or irrationality, may reach different conclusions on the same case.
The new proportionality test
In the absence of case-law on how the new proportionality test is working in practice, how should you argue proportionality at assessment (with examples of successes and failures, difficulties experienced and overcome and unexpected issues or arguments deployed)?
- Back in early December, White Paper got in touch with me to ask me to speak on the subject of the new proportionality test. It’s a very important topic so I was happy to agree. I thought that the subhead was perhaps a little ambitious, but there were four months to go before the talk, and I hoped that the case law would develop usefully over that time. I did what barristers always do in these circumstances, and buckled down to the urgent cases on my desk, whilst hoping that decided cases would conveniently turn up in the meantime to allow me to live up the my billing.
2. In the event I am going to have to be a little less definitive than the subheading suggests. There is not yet the level of guidance from the senior courts that would allow me to tell you which arguments are going to succeed. The effect of the transitional provisions in CPR 44.3(7) is that assessment of costs under the new regime is not yet taking place in a sufficient body of significant cases to yield the sort of authoritative guidance that you would all like in order to assist you to advise your clients and shape your arguments.
3. Rather I am going to look at the rules, the guidance so far, and to seek to guide you as to the arguments and approaches that seem most likely to be productive.
How important is proportionality under the new rules?
4. Put shortly, it’s central to the scheme of the new rules. The significance is best demonstrated by the new formulation of the overriding objective at CPR
1.1. The old formulation, engraved on litigators’ hearts, was 1.1(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. But the new formulation is significantly different:
1.1(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. This is self-evidently a fundamental change. Proportionality is now elevated to equal billing with justice.
