Articles
Proportionality in Legal Costs: The Word Everyone Uses but Nobody Loves
Sunday 31st May 2026
Sonny Welsh
Proportionality is one of the most commonly used words in legal costs. It is also one of the most uncomfortable.
Everyone understands the basic idea. Costs should not be excessive when compared with what the case was really about. The amount claimed should bear a sensible relationship to the issues, the value of the claim, the complexity of the litigation, the conduct of the parties, and any wider factors involved.
In principle, few would argue with that. The difficulty is not the concept. The difficulty is how it works in practice.
Proportionality often appears simple when viewed from a distance. A claim settles for a certain sum. The costs claimed are then compared with that sum. If the costs look too high, the argument follows quickly “they are disproportionate!”.
But litigation is rarely that straightforward. A case is not always measured properly by the final damages figure. The amount recovered at the end may not reflect the importance of the case to the client, the risks involved, the conduct of the paying party, the evidential hurdles faced, or the work that was reasonably required to bring the matter to a successful conclusion.
That is why proportionality can feel like a blunt instrument when applied too narrowly. A modest damages claim can still require detailed work. Liability may be disputed. Medical evidence may be complex. Disclosure may be problematic. The client may be vulnerable. The Defendant may take points which generate additional work. Interim applications may become necessary. Expert evidence may be required. Settlement may only be achieved after significant procedural pressure.
When the case later settles, it is easy for the paying party to say that the costs are too high compared with the damages. It is much harder to capture, in a single figure, why the work was required.
That is where good costs preparation becomes essential. Proportionality is not just an assessment point at the end of the claim. It should be considered throughout the life of the case. That does not mean that solicitors and other lawyers should avoid doing necessary work. It means that the work should be considered, recorded, and capable of explanation.
The question is not simply, “Was the work done?”. The better question is, “Can we justify why the work was reasonable and proportionate in the circumstances of this particular case?” That distinction matters.
There is a real difference between a file that shows careful decision making and a file that simply shows time being spent. If an attendance note explains why a step was necessary, why an expert was required, why further evidence was obtained, or why additional correspondence became unavoidable, the costs claim is in a stronger position. If the file is silent, the paying party has room to attack.
Proportionality also creates tension because it is not the same as reasonableness. Costs may be reasonably incurred and still face a proportionality challenge. That is often the part which frustrates receiving parties most.
A solicitor may have done the work properly. The time may be justified. The hourly rate may be reasonable. The disbursement may have been appropriate. Yet the overall bill may still be challenged on the basis that the total figure does not bear a reasonable relationship to the matters in issue. That can feel unfair.
It can also be commercially difficult, particularly in cases where the work required to pursue the claim properly is not matched by the eventual value of the claim. This is one of the reasons proportionality and access to justice are so closely connected. If recovery is reduced too heavily because the case value is modest, firms may become more cautious about taking on cases where the work required is likely to exceed the recovery available.
That may make sense on a balance sheet. It does not always sit comfortably with the idea of access to justice.
The paying party will often argue that litigation must be conducted economically and that the receiving party cannot spend without regard to the value of the dispute. That is a legitimate point. Costs should be controlled. Parties should not be exposed to excessive or unnecessary costs simply because a claim has been pursued. But proportionality should not become a shortcut for ignoring the realities of litigation.
Some cases become expensive because they are badly handled. Others become expensive because they are properly contested. There is a significant difference between unnecessary work and necessary work generated by the nature of the dispute.
There is also a difference between proportionality being used as a safeguard and proportionality being used as a negotiating weapon.
In practice, proportionality arguments often appear in Points of Dispute in broad terms. The paying party may assert that the total costs are disproportionate without engaging properly with why the costs were incurred. This can place pressure on the receiving party, especially where the damages are relatively modest and the total costs appear, at first glance, to be high.
That is why the narrative of the bill matters. A bill of costs should not be treated as a mechanical schedule of figures. It should tell the story of the litigation. It should reflect the work undertaken, the issues in dispute, the procedural history, the conduct of the parties, and the reasons why the costs claimed were properly incurred.
Where proportionality is likely to be an issue, that story becomes even more important. The receiving party should be able to explain the claim beyond the damages figure. Was liability denied? Were allegations made which required a detailed response? Was causation disputed? Was the client vulnerable? Were experts required? Did the paying party’s conduct increase the work? Were there wider issues beyond simple monetary recovery? Those matters, among others, can be crucial.
Costs budgeting has also changed the landscape. An approved budget can provide support for the receiving party, particularly in relation to future costs. However, budget approval does not remove proportionality from the equation entirely. Nor does it guarantee recovery of every item claimed.
The budget is important, but it is not the end of the argument. If the work claimed is inconsistent with the assumptions, has moved between phases, or cannot be properly explained, the paying party may still raise challenges. Equally, if incurred costs were significant before budgeting took place, those costs may remain vulnerable to scrutiny.
This is why costs strategy should not start when the bill is being drafted. It should begin much earlier.
Solicitors should be alive to proportionality when preparing costs budgets, when advising clients, when making strategic decisions, and when recording work. The aim is not to underwork the case. The aim is to ensure that the file can later demonstrate why the work was necessary, reasonable, and proportionate. Good file management is often the best defence to a proportionality argument.
Clear attendance notes matter. Accurate time recording matters. Proper evidence of disbursements matters. Budget assumptions matter. Explaining changes in the litigation matters. Monitoring the relationship between the work being done and the value or importance of the case matters.
None of this guarantee’s recovery in full, but it puts the receiving party in a much stronger position.
Proportionality will always involve judgment. There will always be room for argument. That is part of why it is such a difficult concept in legal costs. It is not a simple mathematical exercise, even though it is often treated as one. It requires context, explanation, and a proper understanding of how the litigation actually unfolded.
The word may be used by everyone. That does not mean it is always used fairly.
At Smart Legal Costs Solutions, we assist solicitors and other lawyers with costs budgeting, bill drafting, Points of Dispute, Replies, negotiations, and detailed assessment strategy. We understand that proportionality is not just a technical argument. It is often central to how much of the work properly undertaken can actually be recovered.
Proportionality may be the word everyone uses, and nobody loves.
But handled properly, it does not have to be the word that quietly undermines recovery.
Smart Legal Costs Solutions
Legal Costs – A Smarter Way