BNM (Bargain)? Perhaps not
Wednesday 8th November 2017
BNM v MGN Limited  EWCA Civ 1767
The much anticipated judgment in the appeal of BNM has finally surfaced and well, what can we take from it? Not much as it happens.
Firstly, it confirmed what we already thought insofar as additional liabilities are concerned. They are indeed covered under the transitional provisions (CPR 48.1). As such, the Court of Appeal have determined that Master Gordon- Saker was wrong to consider that the new test of proportionality could be applied thereon.
We can now all sit back and relax while saying to ourselves, "I knew I was right all along!"
Indeed, given the unanimity of the Court of Appeal on this issue, it does leave you wondering how, and why, this situation ever arose in the first place?
As one issue is safely and correctly dispatched, we can move onto the next.
We were all hoping for at least some glimmer of hope that there would be some, even just a smidgeon of guidance upon the wider application of the 'new' test of proportionality and how it would be applied in practice generally. Unfortunately, it wasn't to be this time and has been remitted to the Senior Costs Judge to consider the issue again. So, with eyes squeezed shut and fingers tightly crossed, we will have to maintain our hope for just a while longer.
And finally, just like "the meek" in Monty Python's Life of Brian, it's nice to give the Respondent a mention too. The Respondent cross appealed Master Gordon-Saker's original decision to allow as reasonable the Claimant's decision to issue proceedings without any prior warning or contact with the Defendant. The Respondent succeeded as it was felt there was too little 'oomph' (paraphrasing) in the reasoning behind his decision and therefore, potentially flawed. Accordingly, "...the appropriate course would be to remit the matter to the Senior Costs Judge to re-consider the issue of prematurity, making it explicit that he has taken the matters I have mentioned into account". This is in addition to the small matter of proportionality.
And after all that? Well, we got something out of it, just not quite what we had ultimately bargained for.
Full Judgment here.