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.
Chapter
9. Recovery of ADR Costs in Litigation
Chapter
23. Recording Settlement
This chapter explores the process of recording a settlement, which is the final part of the alternative dispute resolution (ADR) process. It is essential that all the issues between the parties are covered in a settlement agreement. If particular issues are deliberately left out of the agreement, or are left for further agreement, this should be made clear. The normal rules of contract law must also be adhered to, or the settlement will not be binding. While oral agreements are usually binding, the risk of misunderstandings means that it is invariably best practice to record the agreement in writing. The chapter then looks at the different methods of recording settlement agreements, including exchange of letters, contract or deed, interim order, consent order, and Tomlin order. Ultimately, when drawing up the agreement, it is important not to overlook how any existing proceedings are to be dealt with and on how the costs are to be paid.
