Claims for damages arising out of flight delays are usually of relatively low value. They are normally brought under the European Small Claims Procedure. This procedure includes an entitlement to legal costs. But those costs should not be disproportionate.

This has been an issue in the recent case of Senior v Blue Air reported in the Law Society Gazette on 23rd September 2019 –

https://www.lawgazette.co.uk/news/proportionality-costs-boost-for-flight-delay-firms/5101531.article

In that case the claimant’s solicitors bill was reduced from £1401.00 to £250.00 without reasons.

The decision was successfully appealed before by HH Judge Graham Wood QC. He confirmed that this summary reduction of the bill was not acceptable. Any such reduction must be capable of being scrutinised by a judge on appeal, unless it involves a modest reduction.

Judge Wood found that the bill must be looked at on a line by line basis. Then the judge must consider CPR 44.3 (5) and CPR 44.4 (1).

44.3 (2) (a) says that the court will –

only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred

44.4 says that costs must be –

(i) proportionately and reasonably incurred; or
(ii) proportionate and reasonable in amount

If the judge thinks that the costs are disproportionate, then the next step is to revisit the stages of the matter in order to asses whether a reduction should be made. It was not appropriate simply to make a broad reduction by ‘standing back’ and forming a view –

‘How any judge deals with his/her decision on the recoverable costs in a successful ESCP claim is down to individual preference, provided that it can be clearly established that an exercise has been undertaken, and that the reasoning is scrutable.’

This procedure is likely to become more common when the Personal Injury ‘reforms’ come into force in 2020.

We can provide advice on cases where proportionality is argued. If in doubt, contact us.

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