The dangers of a contested application to amend particulars of claim were highlighted in the recent case of Ward v Associated Newspapers Ltd. This case offers a helpful reminder for practitioners to carefully consider the extent to which it is reasonable to spend time and resources on contested interlocutory applications.
There are differences between substantive litigation and costs litigation which are critical to explaining why parties might be resistant to alternative dispute resolution (ADR) in costs matters. The primary difference is that in the costs litigation the liability for substantive costs has already been determined and the paying party is already feeling the pain of footing the bill. Any additional step in the detailed assessment proceedings is perceived (not without cause) as merely adding to the costs.
Contingency fees provoke very different responses from lawyers, ranging from the view that they are the work of the devil, to them being the ultimate tool providing access to justice.
As usual, the truth lies somewhere in between, but the direction of travel of recent senior court decisions is definitely to endorse contingency fees, which are the ultimate form of proportionality.
