This chapter assesses the possible sanctions for refusing to engage in alternative dispute resolution (ADR) processes. The court will look at whether a party complied with the requirements of Practice Direction—Pre-Action Conduct and the Pre-Action protocols in making decisions about costs. If a party unreasonably refuses to consider ADR, before issue, after issue, or after judgment and pending appeal, they can be penalized in costs. If a successful party unreasonably refuses ADR, they may be deprived of some or all of their costs or ordered to pay some or all of the losing party's costs, including costs on an indemnity basis. Pulling out of an ADR process at the eleventh hour is likely to be judged unreasonable conduct and may result in an adverse costs order. Moreover, the court will not consider ‘without prejudice’ material in considering costs, unless privilege is waived by all the parties to the dispute, or the correspondence is explicitly written on the basis that it is ‘without prejudice except as to costs’.
Chapter
8. The Sanctions for Refusing to Engage in ADR Processes
Chapter
46. Costs
This chapter focuses on legal costs. It discusses the two main principles for deciding which party should pay the costs of an application or of the whole proceedings; the rule that costs follow the event; range of possible costs orders; interim costs orders; indemnity principle; basis of quantification; proportionality; summary and detailed assessments; fast track fixed costs; scale costs; costs and track allocation; publicly funded litigants; pro bono costs orders; costs against non-parties; and wasted costs orders.
Chapter
25. Costs Orders and Assessment
This chapter focuses on the management of legal costs. In principle, when assessing costs on a standard basis the court considers the receiving party's last approved or agreed budget, not departing from it unless there is good reason. In several cases the courts have indicated that an approved budget should normally be followed. However, an amount spent will not necessarily be reasonable and proportionate just because it was included in an approved budget. The chapter then discusses orders for costs, covering the principles for costs orders, powers relating to costs, and costs at the interim stage. The final section deals with quantifying costs, including fixed costs and agreed costs, as well as the court's summary assessment of costs and detailed assessments.
Chapter
46. Costs
This chapter focuses on legal costs. It discusses the two main principles for deciding which party should pay the costs of an application or of the whole proceedings; the rule that costs follow the event; range of possible costs orders; interim costs orders; indemnity principle; basis of quantification; proportionality; summary and detailed assessments; fast track fixed costs; fixed and scale costs; costs and track allocation; publicly funded litigants; pro bono costs orders; costs against non-parties; and wasted costs orders.
Chapter
9. Recovery of ADR Costs in Litigation
This chapter addresses the recovery of alternative dispute resolution (ADR) costs in litigation. The court have power to make an order that the costs of interim applications in connection with ADR should be borne by one party if that party has acted unreasonably, otherwise the usual order will be ‘costs in the case’. If the parties embark on an ADR process and make a clear agreement as to their respective liabilities for the costs of that process, the court will not look behind it. Meanwhile, if the parties make no agreement about the costs of an ADR process, the court can determine liability for the costs of the ADR process. If the parties reach agreement on the main issues by an ADR process and agree that ADR costs should be determined by the court, the court is likely to make no order for costs (meaning each party will bear their own costs) unless it can determine, without trying the case, who would have won at trial.
