Friday 23 November 2012

How about capping/limiting legal costs in cases?

In the Ampleforth Abbey Trust v Turner & Townsend Project Management Limited, I've read a few commentaries on lessons learnt and none seem to come from the angle I'm looking from (not surprising some might say). Although there are no doubt some salutary lessons on letters on intent, limits of liability and all that stuff, that I can see the losers (weren't both parties losers really in this thing going to Court?) were told to pay the winners a few hundred thousand pounds. Where am I going with this, well it's all the other costs of course - legal fees, expert witnesses, the judge, the court, management lost time of both organisations and so on. I'm sure it might be easy enough to find out the legal fees in this case but it would not surprise me if these were many times the award amount.

Is this a problem? Of course it is! Apart from why do these sorts of cases have legal fees likely heavily outweighing the disputed amount, why are the parties and their advisers allowed to do this? Here's a thought, forget the highly dubious 'no win, no fee' and relying on justice through award of costs, how about costs recovery of the parties however incurred cannot be more than the sum awarded - or words to that effect, but you get my gist?

Where is the business case for spending more costs than the sum at stake, this from the perspective of the parties? I'm aware such costs can be sometimes clipped back but I'm talking about throwing the whole system upside down so the parties have to seriously think about the sum at stake, how much legal/management etc time/fees they can therefore commit and maybe, just maybe, realism will take a grip and we will have some sensible outcomes.

Just a thought, actually that prompts another thought....

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