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This has proved over-optimistic, as inspection of the White Book (now similar in size
and complexity to the pre-CPR White Book, supplemented by a volume of forms) or
any search of a legal database on a procedural question will testify. The rules, practice
directions and practice guides are substantial in volume. Since judicial decisions and
transcripts of judgments, including those on procedural points are now widely
accessible, case-law on the CPR is increasing and is frequently being cited in
judgments. The accretions of case-law to the RSC are being replaced by accretions to
the CPR.
One respondent to the 5th Woolf Network survey questioned "whether
Woolf will resemble pre-Woolf procedure in 5, 10 or 15 years' time."
In some cases, the build-up of case-law has been essential since the new code has
naturally thrown up questions requiring clarification by the court. The case of Lownds
v Home Office [2002] 1 WLR 2450 (Practice Note) is one example. There, a costs bill
of £19,405.38 had been run up by the claimant in respect of a claim which had settled
standard basis provides that the costs must be reasonably incurred and also
"proportionate". The costs judge assessed them in this case at £16,784.53. Lord
Woolf CJ in the Court of Appeal described the important issues raised as follows :-
"Because of the central role that proportionality should have in the resolution of civil
litigation, it is essential that courts attach the appropriate significance to the requirement of
proportionality when making orders for costs and when assessing the amount of costs. What
has however caused practitioners and the members of the judiciary who have to assess costs
difficulty is how to give effect to the requirement of proportionality.
In particular there is
uncertainty as to the relationship between the requirement of reasonableness and the
requirement of proportionality. Where there is a conflict between reasonableness and
proportionality does one requirement prevail over the other and, if so, which requirement is it
that takes precedence There is also the question of whether the proportionality test is to be
applied globally or on an item by item basis, or both globally and on an item by item basis."
Notes
The Court of Appeal explained that the correct approach involved a two-stage approach, looking first
at the global amount and then at each item of the bill in turn. If the global amount was not
disproportionate, one needs only to consider the reasonableness of each item. But if
disproportionate, the necessity of incurring each item would also have to be considered and if
unnecessary, the item would be disallowed. The court considered the proportionate amount to be in
the region of £6,500 to £7,000 but left the award untouched since it decided against giving the
guidance offered retrospective effect.
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