A Counsel of Perfection
Most often encountered in, but certainly not limited to, RTA/pedestrian collisions, the principle of a counsel of perfection is relatively straight forward. Essentially it is, “excellent but unrealisable advice”. In other words; great in theory, unrealistic in practice.
Within a legal context the comments of Laws LJ in Ahanonu v South East London and Kent Bus Company  EWCA Civ 274 are oft quoted,
“The judge … has in effect sought to impose a counsel of perfection on the bus driver… Such an approach I think distorts the nature of the bus driver’s duty which was of course no more nor less than a duty to take reasonable care. There is sometimes a danger in cases of negligence that the court may evaluate the standard of care owed by the defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight. The obligation thus constructed can look more like a guarantee of the claimant’s safety than a duty to take reasonable care.”
Two words leap out for me.
Reasonable and hindsight.
Of course, everyone knows that hindsight should not be applied in costs and this goes all the way back to 1956 and Francis v Francis and Dickerson.
However “reasonable” is one issue currently being wrestled with along with its twin sibling “necessary” all in the guise of “proportionality”.
Despite a plethora of articles, conferences and lectures many remain uncertain on how to apply the latest test of proportionality. We all know what it means, but to apply that meaning within a costs context and on a case-by-case basis is proving a challenge. More often than not, a Judge steps back, places one finger high into the wind and guesses based on what they feel. This leads to uncertainty amongst practitioners (who cannot begin to guess what any Judge might do on any particular day) and rank inconsistency amongst the judiciary.
We are often finding Judges who, sat in the “leisure of their chambers”, with a “liberal use of hindsight”, apply a counsel of perfection when deciding what was reasonable or necessary.
The test is not, and should not be, one of perfection. Consider the comments of the Chancellor of the High Court in Davisons Solicitors (A Firm) –v- Nationwide Building Society  EWCA Civ 1626 at paragraph 48, “the requisite standard is that of reasonableness not of perfection”
Such a test must be wrong and yet it appears Judges have no choice but to disregard decades of established legal principles thanks to CPR 44.3(2)(a) which applies just this test; it forces the Court to apply a counsel of perfection; it forces the Court to apply hindsight; it applies an unreasonably high threshold for costs recovery and leaves the lay client exposed; it directly affects access to justice.
How else can the guidance of Mr Leggatt J in Kazakhstan Kagazy Plc & Ors v Zhunus & Ors  EWHC 404 (Comm) (20 February 2015) be applied when he said,
“What is reasonable and proportionate in that context must be judged objectively. The touchstone is not the amount of costs which it was in a party’s best interests to incur but the lowest amount which it could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances.”
A solicitor is not to be paid for incurring reasonable costs in their client’s best interest in order to win a case, but instead should be paid the lowest amount of costs that would have been incurred by someone who was simply proficient (“acceptable and satisfactory, though not outstanding) rather than skilled.
Perhaps the Courts are not applying a counsel of perfection; rather a counsel of parsimony.
Of course this is not the end of the story. It’s barely the beginning. Hopefully the Court of Appeal’s application of the new rule when the inevitable test case arrives will demonstrate more common sense and, ideally, find some clever Denton-esque way to swerve the idea that necessary work is somehow disproportionate.
The latest concept of proportionality might perfectly embody the brave new world envisaged by Jackson LJ, but it only does so on paper. In the cold harsh reality of modern litigation it’s an unnecessary, unworkable, unfair and intangible counsel of perfection that should be consigned to the same bin as the CFA 2000 regulations and, one day, the indemnity principle. The test of necessity and reasonableness is all that is required to police proportionality.
Whilst we can, and will, do everything to craft a Bill which fights your corner every step of the way the onus is on the judiciary, sat alone in chambers on a provisional assessment, to be sensible; to accept that litigation rarely flows smoothly; to not apply hindsight and, contrary to Kazakhstan Kagazy Plc & Ors v Zhunus & Ors; to not assume that cheap + acceptable = proportionate. It does not; it must not; and we’ll do everything we can to make sure they know this.