Masters differ in their views on whether the new proportionality test includes additional liabilities

5th January, 2017

The relationship between the (new) CPR 44.3(5) proportionality test and additional liabilities remains uncertain.


In King v Basildon & Thurrock University Hospitals NHS Foundation Trust Master Rowley stated that the rules were written with the expectation there would be no recoverable additional liabilities. Consequently, the proportionality test should only apply to base costs as set out in Precedent H.


Master Rowley expressly, if respectfully, went against the finding of Master Gordon-Saker in the BNM v MGM which is shortly to be considered by the Court of Appeal.


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