When proportionality is assessed without full cost visibility
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Published: 29 April 2026 | Reviewed: 29 April 2026
(3-minute read)
A step is proposed. A decision is required as to whether it is proportionate to take it.
The assessment is made at that point in time, by reference to what can be seen then.
In practice, only part of the cost trajectory has emerged.
Proportionality is assessed at discrete decision points, without visibility of the total cost trajectory.
This pattern is widely experienced.
It does not depend on the conduct of any individual participant.
It reflects how information becomes available within the process.
Structural condition
Litigation unfolds over time through a sequence of stages.
Some stages are defined in advance.
Others take shape as the matter progresses.
At any given point, only part of the process has occurred. The remainder is contingent.
Future steps depend on developments that have not yet taken place.
Evidence may change.
Positions may shift.
Procedural requirements may expand.
Total cost is not known at the outset.
It becomes visible progressively, as work is performed.
Earlier stages tend to be more clearly defined.
Later stages are less certain.
This creates an uneven distribution of information across the life of the matter.
Decisions are made within that distribution, rather than against a complete view of total cost.
Mechanism
Proportionality assessments occur within this partial information environment.
At the point of decision, three forms of information are typically available:
cost incurred to date
the immediate step under consideration
a provisional view of possible future steps
What is not available is the full accumulation of future cost.
That accumulation depends on how the matter develops.
A step that appears limited in isolation may lead to further work:
additional evidence
responsive material
procedural steps arising from the initial action
Each extension is conditional.
At the time of the initial decision, it is not fully specified.
Proportionality is therefore assessed by reference to local cost and immediate benefit, informed by a partial view of what may follow.
Decision sequence
Proportionality is not assessed once.
It is assessed repeatedly.
Each decision is taken in sequence.
This creates a path-dependent process.
By the time later-stage proportionality is considered, a substantial portion of cost has already been incurred.
The remaining decisions are assessed within that context.
Decision control
Different participants contribute to proportionality assessments.
Courts consider proportionality in procedural management.
Parties consider proportionality in how they conduct the matter.
Practitioners consider proportionality when advising on available steps.
Each operates with access to overlapping, but not identical, information.
No participant has a complete view of the total cost trajectory.
Proportionality is not assessed from a single, unified perspective.
It is assessed across multiple decision points, each with its own informational limits.
Information asymmetry
Cost information is not only incomplete.
It is unevenly distributed.
Practitioners have visibility of the work required for particular steps and their procedural implications.
Clients have visibility of cumulative financial exposure as it is incurred.
Future cost remains uncertain for all participants.
Estimates may be provided.
Ranges may be discussed.
These are necessarily contingent on how the matter develops.
As those conditions change, the expected cost trajectory adjusts.
Proportionality is therefore assessed against a moving baseline.
Incentive alignment within structure
The structure of the process shapes how proportionality is assessed.
Work is organised around discrete steps.
Each step has a rationale and can be justified in isolation.
Professional obligations require that each step be considered carefully:
advancing the client’s position
responding to developments
meeting procedural requirements
Within this framework, declining to take a step may carry its own consequences.
This creates an environment in which taking a step can appear proportionate in light of immediate information, while the cumulative effect of multiple steps is less visible at the time each is taken.
These outcomes do not require any participant to act unreasonably.
They reflect how incentives operate within the structure of the process.
System behaviour
Over time, proportionality is assessed repeatedly under conditions of partial visibility.
Each assessment is grounded in the information available at that point.
Each contributes to the overall cost trajectory.
The full trajectory becomes clear only in retrospect.
By that stage, most decisions have already been made.
This does not reflect error at any single point.
It reflects the conditions under which proportionality is assessed.
The assessment of proportionality is shaped by the information available at each decision point, rather than by the total cost outcome that emerges over time.