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Chapter

Cover A Practical Approach to Effective Litigation

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

Cover A Practical Approach to Civil Procedure

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

Cover A Practical Approach to Civil Procedure

47. Qualified One-Way Costs Shifting  

Qualified one-way costs shifting (QOCS) provides costs protection to claimants in personal injuries claims. If the claimant wins, the defendant should be ordered to pay the claimant’s costs in the usual way. However, if the claimant loses, under QOCS, while the claimant remains liable to pay its own lawyers’ costs, and may be ordered to pay the successful defendant’s costs, the claimant will be protected against actually having to pay those costs to the defendant. This chapter discusses cases where QOCS applies; the effects of QOCS; and loss of QOCS protection.

Chapter

Cover A Practical Approach to Civil Procedure

17. Costs Capping and Protection  

Costs capping orders limit the amount of costs a party may be ordered to pay to its opponent. This chapter will consider the general rules governing costs capping in CPR, Part 3. When it comes into force, there will be a parallel statutory costs capping scheme for judicial review claims in the Criminal Justice and Courts Act 2015, ss 88 and 89. In addition, there are a number of judge-made costs protection orders, namely: Beddoe orders; protective costs orders; Aarhus Convention cases; and costs limitation orders.

Chapter

Cover A Practical Approach to Effective Litigation

18. Costs Management and Budgeting  

This chapter discusses the issue of costs management in litigation. The problem with overall cost is central to many of the current challenges to litigation. It is in the best interests of litigation as a process, and of litigation lawyers who want to maintain the role of litigation, to ensure that litigation becomes as cost-effective as possible. To improve cost-effectiveness, costs need to become more transparent, more manageable as the costs of the case build, with end results as to costs that are more predictable. The chapter discusses the role of costs budgets; orders for costs at an interim hearing; options for parties in terms of practical costs protection; and wasted costs orders against legal representatives.

Chapter

Cover A Practical Approach to Effective Litigation

1. The Growing Focus on ‘Effective’ Litigation  

This chapter briefly sets out the purpose of the present text, namely to outline how a civil dispute may be dealt with in the most effective way, using litigation in a modern context. The text offers a sound guide to all the rules and principles that are most important at each stage of the litigation process, and what skills and practical considerations are relevant. The chapter then considers changes relating to the litigation process brought about by Sir Rupert Jackson' Review of Civil Litigation Costs: Final Report published in January 2010. This is followed by discussions of the meaning of ‘effective’ litigation, the overriding objective of litigation, the changing legal environment, and the time and financial aspects of litigation.

Chapter

Cover A Practical Approach to Effective Litigation

6. Financing Litigation  

This chapter focuses on funding options for litigation. Expense is one of the biggest issues relating to litigation. The high cost of litigation has perhaps been tolerated to some extent out of respect for the expertise of lawyers and because of problems in finding a consensus on how litigation is best funded. The detailed work of the Jackson Review of Civil Litigation Costs has provided a strong basis for development, and there have been numerous expressions of judicial concern with regard to the high level of costs. The chapter begins by considering the sources of legal expense, the parties that bear the expense, and the problems that arise with regard to the expense of litigations. It then discusses funding options for litigation, including self-funding, insurance, conditional fee agreements, damage-based agreements, third party funding, and public funding. It also presents options for funding alternative dispute resolution (ADR).

Chapter

Cover A Practical Approach to Civil Procedure

2. Funding Litigation  

This chapter discusses the issue of funding litigation. Solicitors have a professional duty to advise clients on litigation funding options. The advice and agreed funding method should be confirmed in writing in a ‘client care letter’. Most commercial clients pay their lawyers under the traditional retainer, normally with an agreed hourly rate. Conditional free agreements (CFAs) or ‘no win, no fee’ agreements allow a lawyer to agree not to charge the client if the proceedings are unsuccessful, but to charge an uplift or ‘success fee’ of up to 100 per cent over the solicitor’s usual costs if the proceedings are successful. Damages-based agreements (DBAs) are a form of contingency fee agreement under which the lawyer is paid out of the sums recovered in the proceedings. Public funding through legal aid is restricted to individuals with modest income and capital, and there are wide exclusions from the scheme.

Chapter

Cover A Practical Approach to Effective Litigation

4. ADR, Settlement, and Part 36 Offers  

In recent years alternative dispute resolution (ADR) has evolved from being a fallback in relation to litigation into an important alternative that may be the preferred option in some cases. This chapter outlines the interface between litigation and ADR, and puts litigation into the context of settlement options. ADR is only a complete alternative to litigation where a full adjudicative option such as arbitration or expert determination is used. In most disputes it is more likely that a case will move between litigation and ADR processes, or be subject to both at the same time where an offer has been made and remains open, but the litigation process continues. The chapter discusses the main types of ADR and their fit with litigation; framing an attempt to settle; drawing up terms of settlement; and making Part 36 offers, especially when costs are a major concern in litigation.

Chapter

Cover A Practical Approach to Civil Procedure

16. Costs Management  

Costs management refers to the procedures used by the courts to manage the steps to be taken in civil proceedings while also managing the costs to be incurred by the parties in taking those steps to ensure that litigation is conducted at proportionate cost. This chapter discusses the elements of costs management; cases governed by costs management; costs management orders; costs budgets and case management; judicial control of costs budgets; and impact on costs orders.

Chapter

Cover Introduction to the English Legal System

10. Access to justice: paying for legal services  

This chapter focuses on how legal services, in particular litigation, to the less well off and the poor are paid for. It considers first the radically changed shape of the legal aid scheme and publicly funded legal services in recent years and then discusses the developments designed to control the costs of litigation. It summarizes new ideas for the funding of litigation and improving access to justice. It considers the contribution of the legal profession and approaches to re-engineering the system, finally asking whether new processes—alternatives to the courts—might be better at providing cost effective and proportionate dispute resolution services.