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Funding Litigation Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

Updates Available  

A more recent version of these Funding Litigation notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Civil Ligitation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

FUNDING LITIGATION TWO TYPES OF COSTS

? solicitor-client costs
? inter partes costs DUTY TO ADVISE CLIENTS ON FUNDING

? solicitor under duty to tell + explain to client funding options (solicitors fees + liabilities between parties)

? solicitor must give best possible info about overall cost of case (SRA code of conduct)
? funding arrangement must: be legal + meet client's needs (SRA code of conduct)
? usually send letter containing: above, name + status of fee earner and who fee earner reports to

? breach of code of conduct does NOT render retainer illegal, BUT taken into account when assessing costs TRADITIONAL RETAINER

? = contractual relationship between: o law firm + client; and o barrister + instructing solicitor
? client pays for: (a) solicitor at hourly rate
? = salary of staff + fee earner + profitseveral approaches:set fee for each fee earner; orregional rates for different grades of fee earner based on guideline rates published by Senior Courts Costs Office; orquote lower hourly rate + add mark up of variable percentage

(b) disbursements
? court feesexperts' feescounsel's feesphotocopies etc.

? solicitor should send client care letter: confirming rates, estimating costs + including arrangements for billing

? time for payment o usually pay:sum on account when first retained; +periodically during litigation

LEGAL EXPENSES INSURANCE (BTE INSURANCE)

? often included with car, home insurance etc.
? insurer pays costs
? usually, BTE insurer should be used in preference to other methods of funding (Sarwar v Alam) [?] checking if client has = first task of solicitor on new instructions

? insurer often requires periodical updates on merits of claim to assess whether continuing litigation justifiable under insurance terms AFTER THE EVENT INSURANCE

? usual rule: costs follow the event (r44.3(2))
? ATE insurance = covers other side's costs - premium tied to risk of losing + likely level of costs

? (before April 2013, ATE premiums recoverable against loser BUT revoked by LASPO)
? all / some ATE premiums ARE recoverable against loser for expert reports on liability +
causation in clin neg disputes with a financial value exceeding PS1000 CHAMPERTY, THE INDEMNITY PRINCIPLE + JACKSON

? contracts savouring of maintenance (meddling in litigation without just cause) or champerty (meddler seeks to obtain share of proceeds of suit) = illegal

? consequence if winner has illegal funding arrangement = CANNOT recover costs from losing party due to the indemnity principle (paying party cannot be liable to pay more in costs than winner is liable to pay own lawyers)

? 1 April 2000 legal aid reforms o public funding of civil claims cut o to compensate, CFAs encouraged o indemnity principle abrogated for certain type of CFA: client liable to pay legal rep's costs only to extent recovered from other side

? Jackson legal aid reforms - 1 April 2013 o recommended abolition of indemnity principle (NOT implemented) o implemented following changes (a) abolished recoverability of success fees from unsuccessful parties; and

(b) capped success fees recoverable from client for PI at 25% of damages (excluding future loss)

(c) legalised contingency fees (d) increased general damages for personal injuries + suffering by 10%
(many causes of action, NOT just PI)

(e) enhanced damages by further 10% as reward for effective C Part 36 ooffer

(f) banned referral fees (g) introduced costs protection for Cs in PI claims (QOCS) CFAs

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