Costs and how they are awarded
In all litigations the consumer’s lawyer should have sufficient knowledge to assess, not only the costs of the case but also adverse costs, which are likely to be incurred should you lose the case. In the throes of litigations, the court will also require costs budgets to ensure all parties are fully abreast of their forward liabilities and those costs they might face should they lose their case.
When discussing costs, the subject is more important than a consumer thinks, costs can change:
- due to the complexity of the migration issues
- they may rise as more and more litigants join a group or depend upon your actions in the case
- the consumer could suffer penalties imposed by the court, if a consumer’s conduct is brought into question, and proved to be contrary to the rules and practice directions of the court.
- if the trial judge believes that the costs are not reflecting the required work that is necessary, or that a consumer has caused an escalation of the costs because of too many engagements with the lawyers, then that judge can reduce the costs the consumer claims to a more recognisable and equitable figure.
Thus, it is always a requirement to monitor costs and ensure they reflect that the time spent was necessary. As LCF will have an interest in the costs element of the case, LCF will monitor the costs incurred and hopefully assist in limiting those costs so that the case costs are fully managed.
What are Adverse Costs?
Consumers must understand and consider how to fund the costs in delivering their own case - the costs called “cost of the case” are paid to the consumer’s representatives. That said, a consumer will be told from the outset that every case delivered to the courts or adjudicator attracts risk, thus in all litigations a consumer is exposing themselves to the risk of losing their case. In the event the case is lost, it is likely that a consumer will be expected to pay the opponent’s costs, as these costs generally follow the event.
These potential costs are termed as 'adverse costs' and the consumer will have to pay them, should the court rule this. It is true to say in every case the paying of adverse costs is a risk and a consumer should have just regard for that risk and prepare for the potential liability. Not to do so, and equally not to consider adverse costs, might come back to bite the consumer in the future which could cause problems in the event the liability is amortised by the court.
Accordingly, a consumer should consider ATE insurance or some other form of assistance should that event become a reality.
In all cases a professional lawyer will refer to the risk, as not to do so would be a breach in the duty they owe their client.
The actual amount of the costs a consumer may become liable for will be either delivered by the trial judge who will assess them, or they will be assessed via a separate cost hearing, where the costs will be analysed and subject to other representations and countering assertions.