BNM v MGN Ltd [2017] EWCA Civ 1767 (07 November 2017)

BNM v MGN Ltd [2017] EWCA Civ 1767 (07 November 2017)

The old proportionality test under CPR 44.4(2) and the relevant old Costs Practice Direction applies to success fees and ATE insurance premiums in privacy proceedings with pre-commencement funding arrangements; the Senior Costs Judge erred in applying the new test. The issue of whether it was reasonable for the claimant to issue proceedings without prior notice must be reconsidered, taking into account all relevant circumstances.

Citation
[2017] EWCA Civ 1767
Parties
Appellant: BNM; Respondent: MGN Limited
Jurisdiction
England and Wales
Judgment Date
07 November 2017
Procedural Posture
Appeal (costs) / Court of Appeal Judgment on Appeal and Cross Appeal From Senior Courts Costs Office
Outcome
Appeal and cross-appeal allowed; Final Costs Certificate set aside; matter remitted for reconsideration.
Legal Topics
Proportionality of Costs, Conditional Fee Agreements, ATE Insurance Premiums, Privacy Proceedings, Transitional Provisions Under LASPO 2012
Civil Procedure Media Law Costs Proportionality of Costs Conditional Fee Agreements ATE Insurance Premiums Privacy Proceedings Transitional Provisions Under LASPO 2012

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Parties

BNM

Appellant

MGN Limited

Respondent

Procedural Posture

Appeal (costs) / Court of Appeal Judgment on Appeal and Cross Appeal From Senior Courts Costs Office

Legal Issues

  1. 1 Whether the old or new proportionality test applies to success fees and ATE insurance premiums in privacy proceedings with pre-commencement funding arrangements
  2. 2 Whether it was reasonable for the claimant to issue proceedings without prior notice to the defendant

Ratio Decidendi

The old proportionality test under CPR 44.4(2) and the relevant old Costs Practice Direction applies to success fees and ATE insurance premiums in privacy proceedings with pre-commencement funding arrangements; the Senior Costs Judge erred in applying the new test. The issue of whether it was reasonable for the claimant to issue proceedings without prior notice must be reconsidered, taking into account all relevant circumstances.

Court Disposition

Appeal and cross-appeal allowed; Final Costs Certificate set aside; matter remitted for reconsideration.

Orders

  • Detailed assessment of claimant's costs remitted to Senior Costs Judge to reconsider proportionality and reasonableness of issuing proceedings without prior notice, applying the old proportionality test to pre-commencement funding arrangements and the new test to base costs.
  • Respondent to pay 70% of appellant's costs of the appeal and cross-appeal, subject to detailed assessment if not agreed.