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15 June 2012 / Dominic Regan
Issue: 7518 / Categories: Features , Procedure & practice , Costs
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The P word

It’s all about proportionality, says Dominic Regan

The concept of proportionality is spreading like a virulent rash over the body of English law. The entire canon of Jackson material can be condensed into that solitary word. Litigation must be conducted in a manner and at a cost commensurate with a proportionate approach. What is, perhaps, less obvious, is that in recent times proportionality has been invoked to dismiss claims or to prevent them from being pursued.

Proportionality in practice

Let us take the recent decision of Tugendhat J in Citation plc v Ellis Whittam Ltd [2012] EWHC 549 (QB), [2012] All ER (D) 174 (Mar). This was an action for slander and malicious falsehood between two rival companies. The claimant made it clear that it had not suffered actual damage, and, as a company, it was incapable of recovering damages for distress. Since the defendant had accepted that it must never repeat the words complained of, the court concluded that litigation could not achieve more than had already been obtained by

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NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
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After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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