Civil Procedure Rules: Planning for litigation Flashcards
What was decided in Arkin v Borchard Lines Ltd (Nos 2 and 3) [2005] 1 WLR 3055?
Those who fund litigation must accept that their risks extend beyond the risk only of bearing their fundee’s costs and extend to the other party also. However, in this case that liability to the successful defendant was to be limited to an amount equal to the sum it had agreed to expend to support the claimant.
CPR 44.2(2)
Court’s discretion as to costs
If the court decides to make an order about costs –
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order
para 8.7 SRA 2019
Client information and publicity:
You ensure that clients receive the best possible information about how their matter will be priced and, both at the time of engagement and when appropriate as their matter progresses, about the likely overall cost of the matter and any costs incurred.
What case found that after the event legal expenses insurance was a proper and reasonable expense that should be recoverable?
Sarwar v Alam [2002] 1 WLR 125
What is after the event insurance?
Insurance which covers the claimant if they have to pay their opponents costs and solicitors disbursements incurred as a result of them bringing legal action
Only an option if the client has a strong case (insurer won’t take it on if it’s a weak case)
What is before the event insurance?
Insurance the client might already have (housing, car insurance) there could be legal expense cover
You can use legal expense cover to cover your claims – can’t choose what solicitor you want representing them
What is a conditional fee agreement?
No win no fee agreement – contract between client and solicitor under which the client does not need to pay the fees unless the solicitor wins
There is a success fee applied to the base costs (normal fee + base fee on top)
The level of success fee depends on the success but can go up to 100%
P.I claims – maximum success fee is 25%
The claimant still remains liable to pay the other sides costs
Clients are advised to take out ATE insurance
What is a damages-based agreement
Operates on a no win no fee basis
You don’t take a success fee but you take a share of the proceeds of the claim
The claimant still remains liable to pay the costs of the winning side
What is Litigation Funding Agreement (or “LFA”)?
Contract you enter into with a 3rd party where they would fund the litigation and normally share the proportion of the proceeds
Where the claim fails, the 3rd party may need to make a contribution towards the winnings costs
What is legal aid?
State funding for those who cannot afford to fund litigation
Only available in certain situations
The conservative party have lessened legal aid
There’s a blanket exclusion in respect to p.i and death
Only available for individual companies
Rare in tort related
Mainly found in criminal and family cases
What is a disbursement?
Costs and expenses which a solicitor can incur on your behalf
There’s court fees, travel, photocopying costs, expert fees, search fees (can’t find up to date address) you need to pay
You would ask before for a payment on account for these fees
What is the indemnity principle?
Where a successful parry can only recover from the losing party the expenses in respect to legal costs and expenses which they would otherwise the liable for in law
Can only charge what you are allowed to charge
If you charge too much or for work, you haven’t done – can be accused of fraud and struck off
