ch 10 Flashcards

1
Q

what is cost shifting?

A

recovering costs normally loser pays winner

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2
Q

5 ways costs can be shifted?

A

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

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3
Q

3 criteria for arguments pro ADR in relation to costs?

A

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

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4
Q

normal agreement for costs in ADR?

A

share costs equally

each party bears their own expenses

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5
Q

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

A

not if parties have already agreed to it

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6
Q

costs in non-adj ADR?

A

agreement for costs can be varied by agreement during ADR

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7
Q

costs in adj ADR?

A

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

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8
Q

what can happen with costs in arbitration tribunal?

A

tribunal may make an award allocating costs between parties

subject to their agreement

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9
Q

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

A

court has a discretion under CPR part 44 (applies)

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10
Q

what does CPR Part 44 mean?

A

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

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11
Q

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

A

costs will follow the event

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12
Q

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

A

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

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13
Q

factors court considers with parties conduct?

A

success of the claim
conduct throughout dispute
reasonableness of party

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14
Q

what will court do if ADR fails in considering costs?

A

primarily respect the contractual agreement as regards expenses

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15
Q

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

A

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

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16
Q

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

A

inform the court

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17
Q

ways settlement can be communicated to court?

A

part 36 = automatic entitlement of costs

consent order=court has discretion as to costs

18
Q

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

A

expert determination decided costs without authority

parties agreed on everything but costs

19
Q

principles court applies when making a decision as to costs?

A

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

20
Q

costs at interim stage if ADR is decided on?

A

court’s discretion

21
Q

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

A

may order that party pays ADR costs

22
Q

what does ‘costs in the case’ mean?

A

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

23
Q

position of court and costs at hearing stage?

A

separate ADR costs remain a matter of agreement

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

24
Q

requirements of making a part 36 offer?

A

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

25
how to accept a part 36 offer?
writing
26
is part 36 offer a form of ADR?
no alternative
27
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
28
does offering pt 36 exempt a party from being encourgaed to pursue other forms of ADR?
no
29
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
30
can non-financial terms be included in part 36?
yes if stated clearly
31
wording of a part 36 offer?
the wording as interpreted by a reasonable solicitor
32
what happens after time period stated in part 36 offer with costs?
court has discretion
33
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
34
purpose of pt 36 offers?
encourage the making and acceptance of realistic offers
35
challenge with pt 36?
assessing the figure to ogger
36
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
37
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
38
what is QOCS?
qualified one-way cost shifting
39
what was QOCS introduced for?
mainly personal injury and clinical negligence
40
effect of QOCS?
claimant can still recover costs if successful but won;t be at risk of paying def's cost if claim fails
41
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
42
why was QOCS introduced?
balance non-recovery of a success fee and ATE insurance premium