Proportionality

The pundits now have had time to analyse the decision in Lownds v Home Office (21/LL p53), two helpful contributions being by Jeremy Morgan in the Law Society Gazette of 10 May and Susan Bartfield in the New Law Journal of the same date. Jeremy Morgan warned that proportionality requires the parties conducting litigation to assess in advance the likely value of the claim, its importance and complexity, to plan the necessary work, the level of fee-earner who should be carrying it out and the appropriate amount to spend on the various stages of the action. In other words, a case plan is required (he pointed out that the court did not use the term ‘case plan’), so that although there is no formal requirement for a written document there must be proof that case-planning has taken place, which a written document would provide. Susan Bartfield thought the higher standard of necessity for individual items where the global figure is disproportionate raises questions as to the characteristics of the competent practitioner who is to be the standard. In claims such as Lownds a competent solicitor practising in general litigation would undoubtedly incur greater costs than a solicitor based in a practice specialising in clinical negligence who had the resources and expertise which a more general practitioner would have to ‘buy in’. She said the message coming through loud and clear from the judgment is the need to plan so far as possible each step at the outset of the investigation of a claim. If, for example, the level of damages appears initially to be low, as compared to the complexities of establishing breach of duty and causation, then the investigation should perhaps commence with assessment of the injury and its likely value, and a Part 36 offer be made on the basis that should it not be accepted, high costs will be incurred and the defendant put on notice that as from the point of non-acceptance they are at risk of being penalised in indemnity costs. Lord Woolf had emphasised that the judgment gave very real incentives for a claimant to make an offer to settle and thus attract the benefit of assessment on the indemnity basis if he beat his own offer. Finally, the judgment emphasised the need to follow the pre-action protocols and for parties to engage in early and sensible dialogue in order to narrow the issues.