ch 7 Flashcards
lawyers duty in relation to costs?
explain potentail expense of dispute resolution including litigation and ADR
5 main reasons why ADR may be cost effective?
can be completed for a fixed agreed fee
parties can control expenses through their agreement choosing cheaper ADR
parties can avoid or control expense of processes such as disclosure, exchange of WS
easier for lawyers to estimate ADR time than litigation
ADR can avoid escalating costs unlike adversarial litigation
8 main elements of expense in ADR?
fee for ADR process
lawyers fee
brief fee (if counsel instructed in connection with ADR)
any other disbursements
expense to attend ADR
expense of lawyers attendance
expense of anyone else asked to attend
paying for location
when is negotiation most cost effective?
done by written submissions or telephone
how is cost in negotiation framed?
cost for lawyers time, conduct negotiation and draw up settlement terms
what adds significant expense to negotiation?
joint settlement meeting in neutral location
how can costs be negotiated in negotiation?
yes
what does mediation cost depend on?
cost of mediator or service provider
how will mediator fee be calculated?
qualification and experience of mediator, time process will take, value of claim, level of contact with mediator, preparation before mediation
does mediation agreement provide info on what is included in the fee of mediation?
yes
guidance online for mediation fee?
gov website e.g. £50 plus VAT for small claim per party
when will lawyers normally attend mediation?
high value case
how is cost sorted in mediation?
as parties wish in their agreement
generally what is most expensive form of ADR?
arbitration
how can arbitration be made cheaper?
one arbitrator conducted through paperwork
where can guidance on cost of arbitration be found?
chartered institute of arbitrators provides cost controlled arbitration
how much will a paper-based or IT-based arbitration be?
charged on hourly fee, few hundred
approximately how much for a hearing for a day? a week?
day-several thousand, week-tens of thousands
what won’t apply in arbitration?
costs management and principle of proportionality unless parties agree
how is cost determined for early neutral evaluation, expert determination/evaluation or adjudication?
paper vs. oral
3rd party fee-complexity of case
typical price of 3rd p for adjudication, evaluation etc.?
£250-500/hr
priorities for self-funding client?
cost effective ADR option
what is ATE insurance?
active after the event insurance
what is ATE insurance used for?
manage risk
what is third party or litigation funding?
3rd party bearing expense in return for share of damages
does 3rd party or litigation funding breach codes of conduct?
no
what must LTA (litigation funding agreement) include?
whether and how the funder may have input in decisions
what is a confidential fee agreement?
client will not pay legal fees if the claim is lost and may pay up to 100% success fee if won and liable to pay disbursements
what should CFA provide for?
potential use of ADR
what happens if case settled
with CFA does success fee have to be revealed?
why?
no
would disclose the lawyers view of the chance of success
what is DBA (damages based funding)?
lawyer being paid on the basis of being paid from any famages recovered
what must be in terms and conditions of DBA?
reasonable estimate of likely expenses
circumstances in which representatives payments, expenses or costs are payable
define what will count as succes
caps with DBA for lawyers fee?
50%
advantage of LAA (Legal Aid Agency) funding?
other side will face paying their own costs even if they win
thus more likely to make a settlement offer
can a party with LAA be required to attempt mediation before litigation unless dispute is not suitable?
yes
when will LAA cover reasonable costs of negotiation or mediation?
if it’s the most cost effective
when will funding for trial be available with LAA?
when reasonable attempts to settle have been made
what can happen if party refuses a reasonable offer with LAA?
lawyer must report
funding may be withdrawn
LAA and part 36 offers?
LAA must be told of pt 36 offer
what happens if an assisted party fails to beat a pt 36 offer?
have to pay def’s costs
case may need to be compromised to avoid such an effect
disadvantage of LAA for client?
LAA statutory charge may reduce sum client receives
when does cost management take place?
alongside case management
ADR and cost management?
form H provides for estimates of costs of ADR
can budget be revised as case goes on?
yes
overall what will be needed in financial analysis and risk?
damages realistically claimed in case chance of success comparative cost of lit and ADR proportionate cost of each stage of lit extent of current expenses possibility that liability costs may shift extent it is possible to manage risks
