Costs and Funding

Andrews, Neil

doi:10.1007/978-3-319-74832-0_5

Neil Andrews⁴

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 65))

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Abstract

This chapter explains the “English Rule” on attorney fee and other cost shifting and how it is changing. This topic is a dynamic feature of English practice, innovations including costs budgets and greater concentration on proportionality, as well as fixed (recoverable) costs. There is also discussion of the conditional fee system and damages-based agreements and compares it to the American contingent fee system.

Generally on costs, Andrews ACP (2018), Chaps. 18–20; Bibliography, Section 3.4.

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Notes

1.
Jackson FR (2010); R Jackson, ‘Fixing and Funding the Costs of Civil Litigation’ (2015) 34 CJQ 42); Neil Andrews, ‘On Proportionate Costs’ (2014) 232 Revista de Processo 393–409; J Sorabji, ‘Prospects for Proportionality: Jackson Implementation’ (2013) 32 CJQ 213; AAS Zuckerman, ‘The Jackson Final Report on Costs—Plastering the Cracks to Shore up a Dysfunctional System’ (2010) 29 CJQ 263.
2.
Accessible collectively at: (http://www.judiciary.gov.uk/publications-and-reports/review-of-civil-litigation-costs/lectures).
3.
‘Association of Costs Lawyers’ Annual Conference, 2012: Keynote Address’, at [5] (http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-acl-lecture-may-2012.pdf).
4.
[2014] UKSC 46; [2015] AC 106, at [36].
5.
Plevin v Paragon Personal Finance Ltd (No 2) [2017] UKSC 23, [2017] 1 WLR 1249.
6.
Ibid., at [2].
7.
Chandra v Mayor [2017] EWHC 2636 (Ch), [2017] 1 WLR 929, at [1] and [8] (Judge Purle QC).
8.
Jackson FR (2010), at 2.2.
9.
AAS Zuckerman, ‘The Jackson Final Report on Costs—Plastering the Cracks to Shore up a Dysfunctional System’ (2010) 29 CJQ 263.
10.
Ibid., at 263, 269–76.
11.
CPR 26.6(4); generally, CPR 28.
12.
Jackson Fixed Costs (2017). See also R Jackson, ‘Fixing and Funding the Costs of Civil Litigation’ (2015) 34 CJQ 42.
13.
CPR 44.2(2)(a).
14.
Re Southern Counties Fresh Foods Ltd [2011] EWHC 1370 (Ch).
15.
[1999] 1 WLR 1507, 1522–3, CA.
16.
Flood v Times Newspapers [2017] UKSC 33, [2017] 1 WLR 1415, at [65] to [74].
17.
[2015] UKSC 39, [2015] AC 1663.
18.
As defined at CPR 44.13(1). The reference to damages is crucial: a claim in debt against the Motor Insurers’ Bureau (in respect of an untraced driver’s liability), founded on statute, falls outside the QOCS scheme, Howe v Motors Insurers’ Bureau (No 2) [2016] EWHC 884 (QB), [2016] 1 WLR 2751 (Stewart J), at [17].
19.
CPR 44.13 to 44.16; PD (44), 12.4 to 12.7.
20.
See previous note.
21.
CPR 44.15.
22.
[2014] EWCA Civ 1105, [2015] 1 WLR 1968, at [26] and [27] (Vos LJ).
23.
Neil Andrews, ‘On Proportionate Costs’ (2014) 232 Revista de Processo 393–409, at sections II to IV.
24.
Virani Ltd v Manuel Revert y Cia SA [2003] EWCA Civ 1651, [2004] 2 Lloyd’s Rep 14.
25.
Three Rivers DC v Bank of England [2006] EWHC 816 (Comm), at [14] (Tomlinson J); Fourie v Le Roux [2007] UKHL 1, [2007] 1 WLR 320, at [8] to [11]; [38] to [40], [46], [49].
26.
Jackson FR (2010), Chap. 3; Neil Andrews, ‘On Proportionate Costs’ (2014) 232 Revista de Processo 393–409; R Assy, ‘Briggs’ Online Court and the Need for a Paradigm Shift’ (2017) 36 CJQ 70; J Sorabji, ‘Prospects for Proportionality: Jackson Implementation’ (2013) 32 CJQ 213; A Zuckerman and A Higgins, ‘Lord Justice Briggs’ “SWOT” Analysis Underlines English Law’s Troubled Relationship with Proportionate Costs’ (2017) 36 CJQ 1.
27.
V Ramsey, ‘Implementation of the Costs Reforms’ (2013) 32 CJQ 112, 118.
28.
Plevin v Paragon Personal Finance Ltd (No 2) [2017] UKSC 23, [2017] 1 WLR 1249, at [2].
29.
Neil Andrews, ‘On Proportionate Costs’ (2014) 232 Revista de Processo 393–409, at section V.
30.
http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-jackson-speech-why-ten-percent-29022012a.pdf.
31.
Ibid. at 2.4; Jackson FR (2010), Chap. 10, paras 5.3, 5.6.
32.
Virani Ltd v Manuel Revert y Cia SA [2003] EWCA Civ 1651, [2004] 2 Lloyd’s Rep 14.
33.
Euroption Strategic Fund Ltd v Skandinaviska Enskilda Banken AB [2012] EWHC 749 (Comm), at [10] (Gloster J).
34.
Elvanite Full Circle Ltd v AMEC Earth & Environmental (UK) Ltd [2013] EWHC 1643 (TCC), [2013] 4 Costs LR 612, at [16] (Coulson J); Attrill v Dresdner Kleinwort Ltd [2012] EWHC 1468 (QB) at [27] (Owen J); Three Rivers DC v The Governor & Company of the Bank of England [2006] EWHC 816 (Comm), [2006] 5 Costs LR 714, at [25] (Tomlinson J).
35.
Macleish v Littlestone [2016] EWCA Civ 127, [2016] 1 WLR 3289, at [38] ff (Briggs LJ).
36.
Elvanite Full Circle Ltd v AMEC Earth & Environmental (UK) Ltd [2013] EWHC 1643 (TCC), [2013] 4 Costs LR 612, at [16] (Coulson J); e.g., in Euroption Strategic Fund Ltd v Skandinaviska Enskilda Banken AB [2012] EWHC 749 (Comm) (Gloster J), at [18].
37.
Elvanite case, above, at [16]; EQ Projects v Alavi [2006] EWHC 29 (TCC), at [38]; Waites Construction Limited v HGP Greentree Alchurch Evans Limited [2005] EWHC 2174 (TCC); Three Rivers DC v Bank of England [2006] EWHC 816 (Comm); National Westminster Bank plc v Rabobank Nederland [2007] EWHC 1742 (Comm), at [47].
38.
Excalibur Ventures LLC v Texas Keystone Ince (No 2) [2016] EWCA Civ 1144, [2017] 1 WLR 221, at [8] ff (noted D Capper (2017) 36 CJQ 287–290); and at [21] noting the costs decision by Christopher Clarke J in this case [2013] EWHC 4278 (Comm), at [8] to [32].
39.
Excalibur case [2016] EWCA Civ 1144, [2017] 1 WLR 221, at [21] (Tomlinson LJ), referring also to Balmoral Group Ltd v Borealis (UK) Ltd [2006] EWHC 2531 (Comm) (Christopher Clarke J), Three Rivers District Council v Bank of England [2006] 5 Costs LR 714 (Tomlinson J) and Euroption Strategic Fund Ltd v Skandinaviska Enskilda Banken AB [2012] EWHC 749 (Comm) (Gloster J).
40.
CPR 36.17(1), (2), (3).
41.
[2012] EWCA Civ 843, [2013] 1 WLR 548, at [51] ff.
42.
Re Colt Telecom Group plc [2002] EWHC 2815 (Ch), at [80] and [110] (Jacob J).
43.
Owners of the Ariela v Owners of the Kamal [2009] EWHC 3256 (Comm), [2010] 2 Lloyd’s Rep 247, at [30] and [31] (Burton J).
44.
A v B [2007] 1 Lloyd’s Rep 358 (Colman J).
45.
[2012] EWHC 1468 (QB).
46.
[2012] EWHC 1189 (QB), [2012] IRLR 553, Owen J.
47.
Attrill v Dresdner Kleinwort Ltd [2013] EWCA Civ 394, [2013] 3 All ER 807.
48.
[2012] EWHC 1468 (QB) at [31].
49.
CPR 3.12(1)(a)(b); or, CPR 3.12(1)(c), unless the claim is made by or behalf of a person under 18.
50.
Precedent H (http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03/practice-direction-3e-costs-management#Annex%20A), annexed to PD (3E); general comments on costs budgeting, CPR 3.12 to 3.18 (on the system, P Hurst et al (eds), Costs and Funding following the Civil Justice Reforms: Questions and Answers (3rd edn, Sweet and Maxwell, London, 2017), Chap. 4; Sarpd Oil International Ltd v Addax Energy SA [2016] EWCA Civ 120, [2016] CP Rep 24, at [33] ff (Sales LJ); Jackson RCJ (2018), Chap. 16.
51.
Merrix v Heath of England NHS Foundation Trust [2017] EWHC 346 (QB), [2017] 1 WLR 3399, at [66] to [96].
52.
Ibid., at [95] and [96].
53.
WB (2016), preface at xiii (not repeated in later editions).
54.
Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926, at [43] (this reflects the clear wording of the rule); P Hurst et al (eds), Costs and Funding following the Civil Justice Reforms: Questions and Answers (4th edn, Sweet and Maxwell, London, 2018), Chap. 3.
55.
Elvanite Full Circle Ltd v AMEC Earth & Environmental (UK) Ltd [2013] EWHC 1643 (TCC), [2013] 4 Costs LR 612, at [28] and [30], Coulson J.
56.
P Hurst et al (eds), Costs and Funding following the Civil Justice Reforms: Questions and Answers (4th edn, Sweet and Maxwell, London, 2018), Chap. 3.
57.
CPR 3.14.
58.
CPR 3.15(2)(b).
59.
[2015] EWHC 209 (QB), [2015] 1 WLR 3031, at [52] ff.
60.
Ibid., at [58] and [59].
61.
Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795.
62.
Ibid., at [12].
63.
Lakhani v Mahmud [2017] EWHC 1713 (Ch), [2017] 1 WLR 3482, at [17]; at [47], referring to the devotion of more ‘valuable court time’ as a result of the delay.
64.
Elvanite Full Circle Ltd v AMEC Earth & Environmental (UK) Ltd [2013] EWHC 1643 (TCC), [2013] 4 Costs LR 612 (Coulson J).
65.
CPR 3.10 to 3.21; PD (3F); M Mildred, ‘The Development and Future of Costs Capping’ (2009) 28 CJQ 141.
66.
PD (3F), 1.1.
67.
CPR 3.19(5).
68.
CPR 3.19(6).
69.
Jackson RCJ (2018), 29–028 n 8.
70.
On the demanding criteria, see, e.g., Begg v Her Majesty’s Treasury [2016] EWCA Civ 568, [2016] 1 WLR 4113; on the ‘Aarhus Convention’ and environmental litigation, Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012, [2015] 1 WLR 62.
71.
CPR 44.6(1)(a).
72.
CPR 44.6(1)(b); and CPR Part 47.
73.
CPR Part 45.
74.
CPR 45.16 to 28.
75.
Merrix v Heath of England NHS Foundation Trust [2017] EWHC 346 (QB), [2017] 1 WLR 3399, at [66] to [96].
76.
CPR 36.17 (see text below); see Straker v Tudor Rose (A Firm) [2007] EWCA Civ 368, [2008] Costs LR 205.
77.
[2016] EWCA Civ 569, [2016] 1 WLR 3899, at [37] to [39] (Sir Stanley Burnton).
78.
The amount of the offer involves objective determination: Macleish v Littlestone [2016] EWCA Civ 127, [2016] 1 WLR 3289, at [23], [24] (Briggs LJ).
79.
As noted in OMV Petrom SA v Glencore International AG [2017] EWCA Civ 195, [2017] 1 WLR 3465, at [11].
80.
CPR 36.17(3) ‘Subject to paragraph (7), where paragraph (1)(b) applies, the court must, unless it considers it unjust to do so, order that the claimant is entitled to— (a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired; (b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired; (c) interest on those costs at a rate not exceeding 10% above base rate; and (d) provided that the case has been decided and there has not been a previous order under ths sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is— (i) the sum awarded to the claimant by the court; or (ii) where there is only a non-monetary claim, the sum awarded to the claimant by the court in respect of costs…’ CPR 36.17(5): ‘In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court will take into account all the circumstances of the case including— (a) the terms of any Part 36 offer; (b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made; (c) the information available to the parties at the time when the Part 36 offer was made; (d) the conduct of the parties with regard to the giving of or refusing to give information for the purposes of enabling the offer to be made or evaluated; (e) whether the offer was a genuine attempt to settle the proceedings.’
81.
OMV Petrom SA v Glencore International AG [2017] EWCA Civ 195, [2017] 1 WLR 3465, at [29] to [47] (the version of Part 36 considered in that case has been amended in minor form in the latest version of the rules, and the provision has been renumbered as CPR 36.17, as set out in the preceding footnote).
82.
Ibid., at [38] and [43].
83.
Ibid., at [47].
84.
Ibid., at [39] (Vos C).
85.
S Sime, ‘Offers to Settle: Incentive, Coercion, Clarity’ (2013) 32 CJQ 182.
86.
ALI/UNIDROIT (2016), rule 16.6, at 118, 120.
87.
s 53(1), Senior Courts Act 1981; and similarly s 53(3); Latimer Management Consultants Ltd v Ellingham Investments Ltd [2006] EWHC 3662 (Ch), [2007] 1 WLR 2569, at [30] and [40].
88.
[2002] EWCA Civ 665, [2003] QB 1175.
89.
Owner of Harrods; father of the late Princess Diana’s boy-friend, Dodi, (both died in the Paris car-crash in 1997): on the father, http://en.wikipedia.org/wiki/Mohammed_Al-Fayed.
90.
Heron v TNT (UK) Ltd [2013] EWCA Civ 469, [2014] 1 WLR 1277, at [31] ff (distinguishing, at [34] and [37], Adris v Royal Bank of Scotland [2010] EWHC 941 (QB), [2010] 4 Costs LR 948).
91.
[2014] UKSC 51, [2015] AC 157, at [8] to [13].
92.
N Rowles-Davies, Third Party Litigation Funding (Oxford University Press, 2014); Civil Justice Council’s ‘The Damages-Based Agreements Reform Project: Drafting and Policy Issues’ (London, April 2015), Chaps. 9 and 10; Hodges, Peysner and Nurse, ‘Litigation Funding: Status and Issues’ (Research Report, January 2012), at 62–68; Jackson FR (2010), Chap. 11; Sir Rupert Jackson, ‘Third Party Funding or Litigation Funding’ (2011) (http://associationoflitigationfunders.com/wp-content/uploads/2014/02/Sixth-Lecture-by-Lord-Justice-Jackson-in-the-Civil-Litigation-Costs-Review-.pdf), at 2.4 and 2.5, lists earlier Civil Justice Council papers and his own report on this topic; similarly Jackson (2016), in ‘The case for a CLAF (Contingent Legal Aid Fund) (https://www.judiciary.gov.uk/announcements/speech-by-lord-justice-jackson-the-case-for-a-claf/) at 4.1, explaining the growth of third party funding); R Mulheron, ‘Third Party Funding and Class Action Reform’ (2015) 131 LQR 291; R Mulheron, ‘England’s Unique Approach to the Self-Regulation of Third Party Funding: A Critical Analysis of Recent Developments’ [2014] CLJ 1; R Mulheron and P Cashman, ‘Third Party Funding: a Changing Landscape’ (2008) 27 CJQ 312, 314.
93.
Arkin v Borchard Lines Ltd [2005] EWCA Civ 655, [2005] 1 WLR 3055, at [40]; R Mulheron, ‘The Evolution of Third Party Funding: An Analysis of Current Statutory and Legal Issues’ (2015) 131 LQR 291, 317–319; Jackson FR (2010), 11.47, favours abolishing the cap.
94.
See Excalibur case in next note, at [28].
95.
The Code is appended to Jackson’s speech (2011), ‘Third Party Funding or Litigation Funding’, cited note 97 above.
96.
Excalibur Ventures LLC v Texas Keystone Ince (No 2) [2016] EWCA Civ 1144, [2017] 1 WLR 221 (noted D Capper (2017) 36 CJQ 287–290).
97.
R Mulheron and P Cashman, ‘Third Party Funding: a Changing Landscape’ (2008) 27 CJQ 312, 314.
98.
Jackson’s speech (2011), Sir Rupert Jackson, ‘Third Party Funding or Litigation Funding’ (2011), at 2.1.
99.
Ibid., at 2.2, noting that the doctrines of maintenance and champerty have been relaxed in modern times: e.g., Sibthorpe v Southwark LBC [2011] EWCA Civ 25, [2011] 1 WLR 2111.
100.
[2017] CAT 16, at [119] ff (Competition Appeal Tribunal).
101.
[2016] 2361 (Comm), [2016] EWHC 2361 (Comm), [2017] Bus LR 227, [2016] 2 Lloyd’s Rep 481 (which was noted in the Mastercard case, see preceding note, [2017] CAT 16, at [112]).
102.
[2017] EWHC 463, [2017] 1 WLR 3539.
103.
There are cases where this jurisdiction overlaps with non-party costs orders (5.39); e.g., Heron v TNT (UK) Ltd [2013] EWCA Civ 469, [2014] 1 WLR 1277, at [1] (where the wasted costs application ‘added nothing’ to the non-party costs application).
104.
Flood v Times Newspapers Ltd [2017] UKSC 33, [2017] 1 WLR 1415, at [3] to [13].
105.
[2015] UKSC 50, [2015] 1 WLR 3485, at [12] to [96]; and see the dissent by Lord Clarke at [108] to [137].
106.
Plevin v Paragon Personal Finance Ltd (No 2) [2017] UKSC 23, [2017] 1 WLR 1249, at [9].
107.
Gloucestershire County Council v Evans [2008] EWCA Civ 21, [2008] 1 WLR 1883, at [1] to [11] (Dyson LJ).
108.
Blankley v Central Manchester Children’s University Hospitals NHS Trust [2015] EWCA Civ 18, [2015] 1 WLR 4307, at [38] (after the mental incapacity has arisen, instructions to the lawyer can be given by a representative of the client).
109.
Article 3, Conditional Fee Agreements Order 2013/689.
110.
Articles 4 and 5, ibid.; Article 5(2), ibid., refers to: ‘(a) general damages for pain, suffering, and loss of amenity; and (b) damages for pecuniary loss, other than future pecuniary loss.’
111.
s 44(4), Legal Aid, Sentencing, and Punishment of Offenders Act 2012, substituting a new s 58A(6) within the Courts and Legal Services Act 1990.
112.
s 46(1), Legal Aid, Sentencing, and Punishment of Offenders Act 2012, adding a new Section 58C to the 1990 Act; s 46(2) of the 2012 Act repeals Section 29 of the Access to Justice Act 1999; Sir Rupert Jackson, ‘Legal Aid and the Costs Review Reforms’ (talk to the Cambridge Law Faculty, 5 September 2011) (http://www.law.cam.ac.uk/press/news/2011/09/lord-justice-jackson-legal-aid-and-the-costs-review-reforms--recording/1588).
113.
As listed at Andrews ACP (2013) vol 1, 202.8 n 35; V Ramsey, ‘Implementation of the Costs Reforms’ (2013) 32 CJQ 112, 115.
114.
Unless the claim is shown to have been fundamentally dishonest or it is struck out as legally without basis or an abuse of process: CPR 44.16(1); CPR 44.15.
115.
[2015] UKSC 1, [2015] 1 WLR 560, at [12] to [19].
116.
Heron v TNT (UK) Ltd [2013] EWCA Civ 469, [2014] 1 WLR 1277, at [31] ff (distinguishing, at [34] and [37], Adris v Royal Bank of Scotland [2010] EWHC 941 (QB), [2010] 4 Costs LR 948).
117.
Simmons v Castle [2012] EWCA Civ 1288, [2013] 1 All ER 334, at [50] (10 October 2012), revising [2012] EWCA Civ 1039 by deleting [19] and replacing [20].
118.
Sir Rupert Jackson, ‘Why Ten Per Cent?’ (29 February 2012): (http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lj-jackson-speech-why-ten-percent-29022012a.pdf).
119.
Case (39401/04), [2011] ECHR 66; (2011) 29 BHRC 686, at [219].
120.
Ibid., at [206] ff. And see the remarks of Lord Neuberger in Coventry v Lawrence [2014] UKSC 46; [2015] AC 106, at [37] to [45].
121.
Lord Neuberger (with the agreement of Lord Dyson MR, Lord Sumption and Lord Carnwath; Lord Mance independently agreeing); but Lord Clarke and Baroness Hale dissented.
122.
Coventry v Fen Tigers (No 3) [2015] UKSC 50, [2015] 1 WLR 3485, notably at [83], [89] to [96]. Flood v Times Newspapers [2017] UKSC 33, [2017] 1 WLR 1415
123.
Ibid., at [83].
124.
Flood case, ibid., at [29] to [41].
125.
Case (39401/04), [2011] ECHR 66; (2011) 29 BHRC 686].
126.
Flood case [2017] UKSC 33, [2017] 1 WLR 1415, at [53].
127.
Ibid., at [45] to [55].
128.
Ibid., at [54] and [55].
129.
The claimants’ various rights, from the perspective of the European Convention, are mentioned ibid., at [47], [48], [51], but the main plank was the right to rely on settled law without retroactive legal rescission of those arrangements, ibid., at [47], [48], [52]. Article 1 of the First Protocol of the Convention, which is incorporated as Schedule 1, Part 2, of the Human Rights Act 1998, states: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.’
130.
[2012] EWCA Civ 987, [2012] 1 WLR 3581 (majority decision); noted P Fisher (2013) CJQ 27.
131.
Plevin v Paragon Personal Finance Ltd (No 2) [2017] UKSC 23, [2017] 1 WLR 1249; noted A Allan (2017) 36 CJQ 401–409.
132.
Ibid., at [21].
133.
Ibid.
134.
Ibid., at [4] to [8] (the date of this assignment was 2012, and thus preceded the 1 April 2013 changes.
135.
Ibid., at [2].
136.
s 58AA(3)(a), Courts and Legal Services Act 1990 (amended by s 45, Legal Aid, Sentencing, and Punishment of Offenders Act 2012); Damages-Based Agreements Regulations 2013/609; CPR 44.18; for further details, Andrews ACP (2013) vol 1, 2013, n 8.
137.
The new system is an expansion of the DBA arrangements formerly confined to employment matters.
138.
Reg 1(2), Damages-Based Agreements Regulations 2013/609.
139.
s 58AA(3)(a), Courts and Legal Services Act 1990 (amended by s 45, Legal Aid, Sentencing, and Punishment of Offenders Act 2012).
140.
Reg 7, Damages-Based Agreements Regulations 2013/609.
141.
Reg 4(2), ibid.
142.
Reg 4(3), ibid.
143.
R Jackson, ‘Fixing and Funding the Costs of Civil Litigation’ (2015) 34 CJQ 260, 263.
144.
This is the principle that a party ordered to pay the other’s costs is not to be liable for any sum claimed by the other (the ‘receiving party’) unless the receiving party is contractually liable vis-à-vis his lawyer for that sum; otherwise the paying party is being made to indemnify the receiving party for a phantom loss. It follows that any contractual ground of invalidty between receiving party and lawyer will be opportunistically seized upon by the paying party in order to reduce or eliminate his potential costs liability. For a succinct statement, Marley v Rawlings (No 2) [2014] UKSC 51, [2015] AC 157, at [15].
145.
Ibid., at 282, where he presents eight reasons for supporting hybrid DBAs.
146.
CPR 44.18(1), (2).
147.
Reg 4(1), Damages-Based Agreements Regulations 2013/609.
148.
R Jackson, ‘Fixing and Funding the Costs of Civil Litigation’ (2015) 34 CJQ 260, 263.
149.
McGregor on Damages (20th edn, 2017), 13-015 n 72.
150.
McGregor, ibid.; Neil Andrews, Contract Law (2nd edn, Cambridge University Press, 2015), 490 n 68.
151.
L Brickman, Lawyer Barons: What Their Contingency Fees Really Cost America (Cambridge University Press, 2011); reviewed (2012) 31 CJQ 368 and [2012] CLJ 728.
152.
On these changes, see the Explanatory Notes to Section 81 of the 2015 Act, at paras 418 to 450 (http://www.legislation.gov.uk/ukpga/2015/15/notes/contents).
153.
Excalibur Ventures LLC v Texas Keystone Ince (No 2) [2016] EWCA Civ 1144, [2017] 1 WLR 221 (noted D Capper (2017) 36 CJQ 287–290).
154.
Huscroft v P & O Ferries Ltd [2010] EWCA Civ 1483, [2011] 1 WLR 939, at [14].
155.
cf Olatawura v Abiloye [2002] EWCA Civ 998, [2003] 1 WLR 275; on which Huscroft v P & O Ferries Ltd [2010] EWCA Civ 1483, [2011] 1 WLR 939.
156.
On problems of evidence in this context, Chuku v Chuku [2017] EWHC 541 (Ch), [2017] 1 WLR 3137 (Newey J).
157.
E.g., Emmott v Michael Wilson & Partners [2017] EWCA Civ 285.
158.
This condition requires that the claimant is a front and has no significant personal interest in the outcome: Chuku v Chuku [2017] EWHC 541 (Ch), [2017] 1 WLR 3137 (Newey J).
159.
Harris v Wallis (Ch D, 15 March 2006, All England Reporter).
160.
Sir Lindsay Parkinson v Triplan Ltd [1973] QB 609 at 626–7, CA (Lord Denning MR).
161.
[2002] 1 All ER 401, CA.
162.
Ibid.
163.
Tolstoy Miloslavsky v UK (1995) 20 EHRR 442, ECtHR.
164.
Summit Navigation Ltd v General Romania etc [2014] EWHC 398 (Comm), [2014] 1 WLR 3472, at [31], [33], [40] to [46] (Leggatt J).
165.
[2017] EWHC 463, [2017] 1 WLR 3539.

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Andrews, N. (2018). Costs and Funding. In: The Three Paths of Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 65. Springer, Cham. https://doi.org/10.1007/978-3-319-74832-0_5

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