The Court of Appeal has today handed down judgment in the matter of BNM -v- MGN Ltd  EWCA Civ 1767.
There is, sadly, no guidance generally on the application of the current proportionality test set out in CPR 44.3(2) and (5). The wait continues in that respect.
However, their Lordships have, in agreement with BNM and by overturning the Senior Costs Judge’s decision at first instance, clarified that additional liabilities are not subject to the current proportionality test but to the ‘old’ proportionality test (the test set out at CPR 44.4(2) as it was in force prior to 01/04/13) and other former provisions of the CPR, pre-01/04/13, relevant to the assessment of additional liabilities.
For the avoidance of doubt, however, recoverable ATE LEI premiums in clinical negligence claims relating to policies taken out on or after 01/04/13 remain subject to Section 4.2 of PD 48 and the Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings Regulations 2013, and as such are unaffected by the above decision and subject to the current proportionality test.