White Papers and Practical Guides

Costs and litigation funding are often treated as specialist subjects which arise after the main litigation has been fought. That is a mistake.

In commercial litigation, group actions, funded claims, solicitor and own client disputes, non-party costs applications and appeals, costs may affect the value, viability and strategy of the case from the outset. A costs issue identified early may create leverage, preserve recovery, reduce exposure or prevent a serious problem from becoming worse.

This page collects my longer white papers and practical guides. They are written for solicitors, litigation funders, insurers, costs lawyers, commercial parties and others who need practical guidance on costs and funding issues in litigation.

The aim is not academic commentary. The aim is useful, tactical and commercially focused guidance.

What these guides are for

The guides on this page are intended to help with recurring costs and funding problems, including:

  • Maximising costs recovery in commercial litigation;
  • Minimising exposure to adverse costs;
  • Costs budgeting and costs management;
  • Retainers, CFAs, DBAs and funding arrangements;
  • Solicitor and own client costs disputes;
  • Security for costs;
  • Part 36 and settlement strategy;
  • Consequentials hearings;
  • Indemnity costs and standard basis costs;
  • Issue-based costs orders;
  • Payments on account and interest;
  • Non-party costs orders;
  • Wasted costs applications;
  • Costs and funding in collective proceedings and group actions;
  • Costs appeals;
  • Costs mediation and ADR.

Each guide is designed to identify the practical problem, explain the legal framework in plain English, and suggest points to consider before the issue becomes expensive.

Commercial Costs: Maximising Recovery

A practical guide for receiving parties, claimant firms, successful defendants, commercial litigators and costs professionals seeking to preserve and improve costs recovery.

This guide considers the main stages at which recovery may be protected or lost, including:

  • Retainers and funding arrangements;
  • Costs budgeting;
  • Interim applications;
  • Security for costs;
  • Summary assessment;
  • Part 36;
  • Consequentials hearings;
  • Indemnity costs;
  • Standard basis assessment;
  • Issue-based costs orders;
  • Interest;
  • Payments on account.

The focus is practical: what should be considered, what should be asked for, what evidence may be needed, and when costs strategy should be built into the wider litigation plan.

Commercial Costs: Minimising Expenditure

A practical guide for paying parties, defendants, insurers, commercial clients, litigation funders and solicitors seeking to reduce or contain costs exposure.

This guide considers the same litigation stages from the opposite perspective, including:

  • Challenging retainers and funding structures where relevant;
  • Controlling costs through budgeting and costs management;
  • Resisting excessive interim application costs;
  • Using security for costs strategically;
  • Attacking unreasonable or disproportionate costs;
  • Responding to Part 36 consequences;
  • Opposing indemnity costs;
  • Seeking issue-based or percentage costs orders;
  • Challenging payments on account;
  • Resisting excessive claims for interest.

The aim is to identify where costs exposure can realistically be reduced, and where the fight is likely to cost more than it saves.

Litigation Funding, ATE and Adverse Costs

A practical guide to the costs risks arising in funded litigation.

This guide considers:

  • Litigation funding agreements;
  • CFAs and DBAs;
  • ATE insurance;
  • Security for costs;
  • Adverse costs risk;
  • Funder control;
  • Non-party costs exposure;
  • Settlement priority;
  • Costs in group litigation and collective proceedings.

Funding is not simply a way of paying for litigation. It may affect whether the claim is viable, whether it can resist security for costs, whether the funder is exposed, and whether the settlement structure works.

Non-Party Costs Orders

A practical guide to applications against those who are not named parties to the litigation.

This guide considers:

  • Directors and shareholders;
  • Litigation funders;
  • Insurers;
  • Group companies;
  • Commercial backers;
  • Claims management companies;
  • Litigation controllers;
  • Insolvent or impecunious parties;
  • Evidence, privilege and procedure;
  • Appeals.

Non-party costs applications can be powerful, but they are fact-sensitive and should be approached carefully. The guide is intended for both applicants and respondents.

Wasted Costs

A practical guide to wasted costs applications against legal representatives.

This guide considers:

  • Improper, unreasonable or negligent conduct;
  • Applications against solicitors;
  • Applications against counsel;
  • Hopeless cases and hopeless points;
  • Procedural defaults;
  • Causation;
  • Privilege and confidentiality;
  • Professional negligence overlap;
  • Appeals.

Wasted costs applications are not ordinary costs disputes. They may affect money, reputation and professional relationships. They require careful analysis before being made and careful handling when resisted.

Solicitor and Own Client Costs

A practical guide to disputes between solicitors and clients about legal costs.

This guide considers:

  • Retainers;
  • Client care letters;
  • CFAs and DBAs;
  • Contentious business agreements;
  • Interim bills and final bills;
  • Statute bills;
  • Costs estimates;
  • Informed consent;
  • Deductions from damages;
  • Success fees;
  • Shortfall recovery;
  • Assessment under the Solicitors Act 1974;
  • Professional negligence overlap.

These disputes are often technical, but they are also practical. The first question is usually not simply whether the bill is too high, but what the solicitor was entitled to charge and on what basis.

Collective Proceedings and Group Actions

A practical guide to costs and funding issues in collective proceedings, group litigation and other multi-party claims.

This guide considers:

  • Funding arrangements;
  • ATE insurance;
  • Security for costs;
  • Adverse costs risk;
  • Costs budgeting;
  • Common costs and individual costs;
  • Costs sharing arrangements;
  • Funder exposure;
  • Settlement and distribution;
  • Deductions from damages;
  • Failed or discontinued group claims.

In group litigation, the costs structure is part of the machinery of the case. It should be considered early, not left until settlement or assessment.

How to use these guides

The guides are not a substitute for advice on a particular case. Costs disputes are fact-sensitive. A small difference in the order, retainer, funding agreement, budget, bill, chronology or offer may change the answer.

They are intended to help identify the issues which may matter, the questions which should be asked, and the documents which should be gathered before advice is sought.

If a guide appears relevant to a live case, the next step is usually to identify:

  • The order or application in issue;
  • The amount at stake;
  • The procedural stage;
  • The deadline;
  • The relevant retainer, bill, budget, offer or funding document;
  • The real commercial problem.

A short note identifying the problem is often more useful than a large unexplained bundle.

Instructing me

I am often instructed where a costs or funding issue affects the wider litigation strategy. That may involve commercial costs, retainers, solicitor and own client disputes, litigation funding, non-party costs, wasted costs, group litigation, appeals or costs mediation.

For availability, fee arrangements and urgent enquiries, please contact my clerks at Hailsham Chambers.

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