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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 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 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 Alternative Dispute Resolution

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.

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 A Practical Approach to Alternative Dispute Resolution

4. Funding ADR Procedures  

This chapter discusses the issue of funding alternative dispute resolution (ADR) procedures. Costs are a major motivation for undertaking ADR, but the costs position can be quite complex. Indeed, the separate elements of costs must all be considered. It is government policy to make more use of ADR, including online ADR, for lower-value cases so that dispute resolution is cost effective. Although a process like arbitration can be expensive, most ADR processes are relatively inexpensive, and information on costs is quite easily available from ADR providers. Ultimately, it is important for the lawyer to make an overall analysis of the financial position and risks to assist the client in taking an informed decision about litigation and ADR options. Costs may be considered as part of a negotiated or mediated settlement.

Chapter

Cover Environmental Law

10. Access to environmental justice and the role of the courts  

Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes

This chapter considers the ability of individuals to seek redress to resolve environmental disputes and the role played by the courts. First, the chapter considers the reasons why some disputes end up in the courts before focusing on the main institution of judicial redress in the form of judicial review. Focus includes discussion of likelihood of success before the courts and the usefulness of judicial review in environmental cases. Specifically, the chapter focuses on the problem encountered by litigants in respect to the exorbitant costs associated with judicial review and the attempt by the Government to address this. The chapter also briefly considers the provisions for access to justice in private law as well as before the Court of Justice for the EU before considering alternative mechanisms for compliance, including the debates surrounding the need for a special environmental court.

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.