Proportionality

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Cox and Carter  -v-  MGM Limited, Fraser, Fraser Woodward Limited and Elliott Press

This was a case involving the DJ and former model Sarah Cox which may be useful in showing that the financial value of a claim is not the only thing to be taken into account when considering proportionality. 

The background to the litigation was that photographs of Sarah Cox and her husband which had been taken whilst they were on honeymoon appeared in the press.  Proceedings were issued and eventually the Claimants recovered £50,000.00 damages together with the recovery of the photographs. 

When assessing the bill, Master O’Hare had decided that the bill, which claimed base costs of £142,728.00, was not disproportionate and this together with arguments about the success fee and the hourly rate were subject to the appeal. 

The Court agreed with Master O’Hare’s decision on proportionality and pointed to other factors apart from the financial compensation which had to be borne in mind when considering proportionality.  In this case they included the fact that the Claimants were seeking undertakings and delivery and destruction of the photographs, the fact that the Defendants had prolonged the proceedings, that fact the settlement was only achieved some 20 months after the cause of action arose (and that costs were building up over the intervening period) and the fact that the Forth Defendant was out of the jurisdiction.

The factors in any particular case will have to be judged on their own merit but the case does show the willingness of the Courts to look at all the factors in a case, not simply the financial value when considering proportionality.