The claimant entered into a conditional fee arrangement and bought an ATE insurance policy prior to 1 April 2013 (and accordingly was entitled to recover the success fee and premium). The short point in this case was whether the success fee and premium were subject to the old or new proportionality rules under the assessment of costs on the standard basis. Under the new test, proportionality has assumed greater importance and so costs that are disproportionate in amount may be disallowed or reduced, even if they were reasonably or necessarily incurred.

The Court of Appeal has now held that the assessment should have been conducted on the footing that the old test applied.

Important proposed changes to Disclosure in the Commercial Court, TCC and Chancery Division: Plans have been announced for a 2 year pilot scheme on disclosure for the Business and Property Courts ie the Commercial Court (including (re)insurance cases), TCC and Chancery Division and the Financial List (as well as the Business and Property Courts in Birmingham, Manchester, Leeds, Bristol, Cardiff, Newcastle and Liverpool).

It is anticipated that changes to the CPR will be sought in spring next year, if the plans go through. In essence, the changes are intended to ensure greater take-up of the "menu" of options for disclosure which was introduced in 2013 (and which, it seems, judges have been reluctant to adopt so far). The key changes are as follows:

(1) "Standard disclosure" will disappear and there will be no one "default" order.

(2) "Basic Disclosure" of the documents on which a party intends to rely (and which are necessary to understand the case) will be given with statements of case.

(3) The Electronic Disclosure Questionnaire will be replaced with a joint Disclosure Review Document ("DRD"). The DRD must be produced after the close of statements of case and before the CMC.

(4) The DRD will include proposals for "Extended Disclosure" (and if so, on what Disclosure Module for which issue).

(5) There will be 5 "Extended Disclosure" Modules. These range from no disclosure on a particular issue to disclosure of documents which may lead to a train of enquiry.

(6) The courts should be proactive and not just accept the Modules proposed by the parties.

(7) Form H Costs Budgets in relation to disclosure will be completed after the disclosure order is made (although costs estimates should be provided in the DRD).

Further details can be found here: