ch 10

Question 1

what is cost shifting?

Answer 1

recovering costs normally loser pays winner

Question 2

5 ways costs can be shifted?

Answer 2

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

Question 3

3 criteria for arguments pro ADR in relation to costs?

Answer 3

consider concerns about ADR costs
base arguments on contemporaneous evidence
raise difficulties about ADR

Question 4

normal agreement for costs in ADR?

Answer 4

share costs equally

each party bears their own expenses

Question 5

does a court have a power to make a different order for ADR costs?

Answer 5

not if parties have already agreed to it

Question 6

costs in non-adj ADR?

Answer 6

agreement for costs can be varied by agreement during ADR

Question 7

costs in adj ADR?

Answer 7

parties can agree to give arbitrator or adjudicator power to award costs
ONLY if parties agree

Question 8

what can happen with costs in arbitration tribunal?

Answer 8

tribunal may make an award allocating costs between parties

subject to their agreement

Question 9

what happens with costs if ADR fails and litigation has begun?

Answer 9

court has a discretion under CPR part 44 (applies)

Question 10

what does CPR Part 44 mean?

Answer 10

court has discretion whether costs are payable, amount and when to pay

Question 11

what is the usual order courts will make with Part 44?

Answer 11

costs will follow the event

Question 12

what will the judge consider when making an order as to costs after ADR has failed?

Answer 12

conduct of parties
success of parties in that case
any admissible offer to settle that pt 36 doesn’t apply to

Question 13

factors court considers with parties conduct?

Answer 13

success of the claim
conduct throughout dispute
reasonableness of party

Question 14

what will court do if ADR fails in considering costs?

Answer 14

primarily respect the contractual agreement as regards expenses

Question 15

if parties settle a dispute without agreement to costs what can’t happen?

Answer 15

one party can’t argue they should get costs cos they won the dispute

Question 16

what must parties do where settlement reached before issue of proceedings?

Answer 16

inform the court

Question 17

ways settlement can be communicated to court?

Answer 17

part 36 = automatic entitlement of costs

consent order=court has discretion as to costs

Question 18

2 scenarios when court can make a decision as to costs alone?

Answer 18

expert determination decided costs without authority

parties agreed on everything but costs

Question 19

principles court applies when making a decision as to costs?

Answer 19

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

Question 20

costs at interim stage if ADR is decided on?

Answer 20

court’s discretion

Question 21

option of courts if hearing has begun and one party was unreasonable with ADR?

Answer 21

may order that party pays ADR costs

Question 22

what does ‘costs in the case’ mean?

Answer 22

party awarded costs at the end of case gets the costs (admirality and commercial court guide)

Question 23

position of court and costs at hearing stage?

Answer 23

separate ADR costs remain a matter of agreement

BUT judge has discretion of ADR costs that are ‘incidental’ to litigation

Question 24

requirements of making a part 36 offer?

Answer 24

written
state it’s intended to be a pt 36
whether it applies to the whole claim

Question 25

how to accept a part 36 offer?

Answer 25

writing

Question 26

is part 36 offer a form of ADR?

Answer 26

no alternative

Question 27

how might pt 36 be used as a strategy?

Answer 27

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

Question 28

does offering pt 36 exempt a party from being encourgaed to pursue other forms of ADR?

Answer 28

no

Question 29

what happens if an offer does not meet part 36 requirements?

Answer 29

it’s an offer without part 36 consequences

though minor defects may be corrected

Question 30

can non-financial terms be included in part 36?

Answer 30

yes if stated clearly

Question 31

wording of a part 36 offer?

Answer 31

the wording as interpreted by a reasonable solicitor

Question 32

what happens after time period stated in part 36 offer with costs?

Answer 32

court has discretion

Question 33

when court’s discretion comes in with pt 36 what is relevant?

Answer 33

mediation being refused
failure to engage with ADR or pre-action requirments
conduct after pt 36 offer
pt 36 offers made and withdraw

Question 34

purpose of pt 36 offers?

Answer 34

encourage the making and acceptance of realistic offers

Question 35

challenge with pt 36?

Answer 35

assessing the figure to ogger

Question 36

what should a party do if unable to make a pt 36 offer?

Answer 36

still make an offer that is expressed without prejuduice save as to costs

Question 37

what happened as of 1 April 2013 to encourage use of pt 36 offers?

Answer 37

if def fails to beat claimants pt 36
claimant’s damages can increase by 10%
or 5% if value over 75k
capped at 500k

Question 38

what is QOCS?

Answer 38

qualified one-way cost shifting

Question 39

what was QOCS introduced for?

Answer 39

mainly personal injury and clinical negligence

Question 40

effect of QOCS?

Answer 40

claimant can still recover costs if successful but won;t be at risk of paying def’s cost if claim fails

Question 41

interrelation of pt 36 and QOCS?

Answer 41

if a claimant is awarded a lower amount of damages than offer made
then ot 36 principles will apply

Question 42

why was QOCS introduced?

Answer 42

balance non-recovery of a success fee and ATE insurance premium