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Home > ATE Caselaw > BNM v MGN, Court of Appeal (2017)

BNM v MGN, Court of Appeal (2017)

BNM v MGN, Court of Appeal (2017)

The Issues:

The issue of law in this appeal heard by Sir Terence Etherton was to decide whether the success fee payable under conditional fee agreements between the claimant and her solicitors and between her solicitors and her barristers together with the premium payable under an after the event insurance policy was subject to the old or the new proportionality rules under the Civil Procedure Rules on an assessment of her costs on the standard basis.

In the original proceedings the claimant (BNM) had brought privacy proceedings seeking to prevent publication by MGN of details of her relationship with a successful premiership footballer.  Those proceedings settled in July 2014 following MGN’s offer to pay damages of £20,000.00 on the basis that MGN pay BNM’s standard basis costs. 

BNM claimed costs of £241,817.00 which included a success fee in respect of her solicitors and barrister’s costs and an ATE premium of £58,000.00 plus £3840.00 IPT.  The main issue before Senior Costs Judge, Master Gordon-Saker was whether the assessment of the success fee and ATE premium were to be subject to the pre-April 2013 proportionality rules at the then CPR 44.4(2) or to the current proportionality rules at CPR 44.3 (2) and (5).

Master Gordon-Saker halved the success fees and ATE on detailed assessment ruling that:-

  • CPR 48.1 preserved the old pre-1 April 2013 costs provisions of the CPR to “pre-commencement funding arrangements” but that the old CPR 44.4(2) proportionality test was not expressly preserved by CPR 48 PD 1.4;
  • Although BNM’s CFAs with her solicitor and counsel, and her ATE policy were pre-commencement funding arrangements for the purposes of CPR 48.2(1)(b), since the old CPR 44.3(2) and (5) proportionality test; and
  • In any event it would be absurd to assess the base costs by reference to the new test but the additional liabilities by reference to the old test.

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