ch 10 Flashcards
what is cost shifting?
recovering costs normally loser pays winner
5 ways costs can be shifted?
part of settlement in negotiation or mediation
part 36 offer
adj process-part of award made by 3rd p
litigation-power of court
proceedings issued and action discontinued the claimant liable for def’s costs
3 criteria for arguments pro ADR in relation to costs?
consider concerns about ADR costs
base arguments on contemporaneous evidence
raise difficulties about ADR
normal agreement for costs in ADR?
share costs equally
each party bears their own expenses
does a court have a power to make a different order for ADR costs?
not if parties have already agreed to it
costs in non-adj ADR?
agreement for costs can be varied by agreement during ADR
costs in adj ADR?
parties can agree to give arbitrator or adjudicator power to award costs
ONLY if parties agree
what can happen with costs in arbitration tribunal?
tribunal may make an award allocating costs between parties
subject to their agreement
what happens with costs if ADR fails and litigation has begun?
court has a discretion under CPR part 44 (applies)
what does CPR Part 44 mean?
court has discretion whether costs are payable, amount and when to pay
what is the usual order courts will make with Part 44?
costs will follow the event
what will the judge consider when making an order as to costs after ADR has failed?
conduct of parties
success of parties in that case
any admissible offer to settle that pt 36 doesn’t apply to
factors court considers with parties conduct?
success of the claim
conduct throughout dispute
reasonableness of party
what will court do if ADR fails in considering costs?
primarily respect the contractual agreement as regards expenses
if parties settle a dispute without agreement to costs what can’t happen?
one party can’t argue they should get costs cos they won the dispute
what must parties do where settlement reached before issue of proceedings?
inform the court
ways settlement can be communicated to court?
part 36 = automatic entitlement of costs
consent order=court has discretion as to costs
2 scenarios when court can make a decision as to costs alone?
expert determination decided costs without authority
parties agreed on everything but costs
principles court applies when making a decision as to costs?
overriding objective
make order when substantive proceedings settled without trial
consider previous unresolved issue (depending on case)
in absence of reason to make any other order=make no order
costs at interim stage if ADR is decided on?
court’s discretion
option of courts if hearing has begun and one party was unreasonable with ADR?
may order that party pays ADR costs
what does ‘costs in the case’ mean?
party awarded costs at the end of case gets the costs (admirality and commercial court guide)
position of court and costs at hearing stage?
separate ADR costs remain a matter of agreement
BUT judge has discretion of ADR costs that are ‘incidental’ to litigation
requirements of making a part 36 offer?
written
state it’s intended to be a pt 36
whether it applies to the whole claim
how to accept a part 36 offer?
writing
is part 36 offer a form of ADR?
no alternative
how might pt 36 be used as a strategy?
offer it instead of negotiation/mediation
to initaite or provide a baseline in ADR
make pt 36 offer to protect a party’s position after unsuccessful ADR
does offering pt 36 exempt a party from being encourgaed to pursue other forms of ADR?
no
what happens if an offer does not meet part 36 requirements?
it’s an offer without part 36 consequences
though minor defects may be corrected
can non-financial terms be included in part 36?
yes if stated clearly
wording of a part 36 offer?
the wording as interpreted by a reasonable solicitor
what happens after time period stated in part 36 offer with costs?
court has discretion
when court’s discretion comes in with pt 36 what is relevant?
mediation being refused
failure to engage with ADR or pre-action requirments
conduct after pt 36 offer
pt 36 offers made and withdraw
purpose of pt 36 offers?
encourage the making and acceptance of realistic offers
challenge with pt 36?
assessing the figure to ogger
what should a party do if unable to make a pt 36 offer?
still make an offer that is expressed without prejuduice save as to costs
what happened as of 1 April 2013 to encourage use of pt 36 offers?
if def fails to beat claimants pt 36
claimant’s damages can increase by 10%
or 5% if value over 75k
capped at 500k
what is QOCS?
qualified one-way cost shifting
what was QOCS introduced for?
mainly personal injury and clinical negligence
effect of QOCS?
claimant can still recover costs if successful but won;t be at risk of paying def’s cost if claim fails
interrelation of pt 36 and QOCS?
if a claimant is awarded a lower amount of damages than offer made
then ot 36 principles will apply
why was QOCS introduced?
balance non-recovery of a success fee and ATE insurance premium
