ch 7

Question 1

lawyers duty in relation to costs?

Answer 1

explain potentail expense of dispute resolution including litigation and ADR

Question 2

5 main reasons why ADR may be cost effective?

Answer 2

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

Question 3

8 main elements of expense in ADR?

Answer 3

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

Question 4

when is negotiation most cost effective?

Answer 4

done by written submissions or telephone

Question 5

how is cost in negotiation framed?

Answer 5

cost for lawyers time, conduct negotiation and draw up settlement terms

Question 6

what adds significant expense to negotiation?

Answer 6

joint settlement meeting in neutral location

Question 7

how can costs be negotiated in negotiation?

Answer 7

yes

Question 8

what does mediation cost depend on?

Answer 8

cost of mediator or service provider

Question 9

how will mediator fee be calculated?

Answer 9

qualification and experience of mediator, 
time process will take, 
value of claim, 
level of contact with mediator,
preparation before mediation

Question 10

does mediation agreement provide info on what is included in the fee of mediation?

Answer 10

yes

Question 11

guidance online for mediation fee?

Answer 11

gov website e.g. £50 plus VAT for small claim per party

Question 12

when will lawyers normally attend mediation?

Answer 12

high value case

Question 13

how is cost sorted in mediation?

Answer 13

as parties wish in their agreement

Question 14

generally what is most expensive form of ADR?

Answer 14

arbitration

Question 15

how can arbitration be made cheaper?

Answer 15

one arbitrator conducted through paperwork

Question 16

where can guidance on cost of arbitration be found?

Answer 16

chartered institute of arbitrators provides cost controlled arbitration

Question 17

how much will a paper-based or IT-based arbitration be?

Answer 17

charged on hourly fee, few hundred

Question 18

approximately how much for a hearing for a day? a week?

Answer 18

day-several thousand, week-tens of thousands

Question 19

what won’t apply in arbitration?

Answer 19

costs management and principle of proportionality unless parties agree

Question 20

how is cost determined for early neutral evaluation, expert determination/evaluation or adjudication?

Answer 20

paper vs. oral

3rd party fee-complexity of case

Question 21

typical price of 3rd p for adjudication, evaluation etc.?

Answer 21

£250-500/hr

Question 22

priorities for self-funding client?

Answer 22

cost effective ADR option

Question 23

what is ATE insurance?

Answer 23

active after the event insurance

Question 24

what is ATE insurance used for?

Answer 24

manage risk

Question 25

what is third party or litigation funding?

Answer 25

3rd party bearing expense in return for share of damages

Question 26

does 3rd party or litigation funding breach codes of conduct?

Answer 26

no

Question 27

what must LTA (litigation funding agreement) include?

Answer 27

whether and how the funder may have input in decisions

Question 28

what is a confidential fee agreement?

Answer 28

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

Question 29

what should CFA provide for?

Answer 29

potential use of ADR | what happens if case settled

Question 30

with CFA does success fee have to be revealed? | why?

Answer 30

no | would disclose the lawyers view of the chance of success

Question 31

what is DBA (damages based funding)?

Answer 31

lawyer being paid on the basis of being paid from any famages recovered

Question 32

what must be in terms and conditions of DBA?

Answer 32

reasonable estimate of likely expenses circumstances in which representatives payments, expenses or costs are payable define what will count as succes

Question 33

caps with DBA for lawyers fee?

Answer 33

50%

Question 34

advantage of LAA (Legal Aid Agency) funding?

Answer 34

other side will face paying their own costs even if they win | thus more likely to make a settlement offer

Question 35

can a party with LAA be required to attempt mediation before litigation unless dispute is not suitable?

Answer 35

yes

Question 36

when will LAA cover reasonable costs of negotiation or mediation?

Answer 36

if it's the most cost effective

Question 37

when will funding for trial be available with LAA?

Answer 37

when reasonable attempts to settle have been made

Question 38

what can happen if party refuses a reasonable offer with LAA?

Answer 38

lawyer must report | funding may be withdrawn

Question 39

LAA and part 36 offers?

Answer 39

LAA must be told of pt 36 offer

Question 40

what happens if an assisted party fails to beat a pt 36 offer?

Answer 40

have to pay def's costs | case may need to be compromised to avoid such an effect

Question 41

disadvantage of LAA for client?

Answer 41

LAA statutory charge may reduce sum client receives

Question 42

when does cost management take place?

Answer 42

alongside case management

Question 43

ADR and cost management?

Answer 43

form H provides for estimates of costs of ADR

Question 44

can budget be revised as case goes on?

Answer 44

yes

Question 45

overall what will be needed in financial analysis and risk?

Answer 45

``` 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 ```