Legal Costs or Fees

If you instruct a solicitor, you will principally be concerned with two things – his competence and the costs. Even if you “do it yourself”, you have to weigh up whether the claim is worth the aggravation involved and the time expended.

You are unlikely to be concerned with legal costs, if you have legal aid or legal insurance. Included in legal costs are disbursements, such as court fees or experts’ fees; provided you win your case, these disbursements are recoverable.

Assuming you are not covered by legal aid or legal insurance, you would do well to read on about legal costs. Unless your claim is a small claim, each side, win or lose, has to pay its own cost. Costs used to be “taxed” but now they are “assessed”. Costs are assessed by costs judges or trial judges.

Costs are important for three reasons. First, is the outlay of legal costs worth the amount at stake – it’s a bit like gambling; you have to weigh up the odds! Secondly, if you lose, you may well have to pay the other (winning) party’s costs – but even here you may well be able to challenge the amount of legal costs being claimed against you. Thirdly, even if you win, you may not be entitled to all the legal costs claimed by you or your solicitor on your behalf either because the other party is impecunious or because your legal costs are not favourably assessed. Your solicitor may be entitled to more costs than you can recover from the other party.

So once you have chosen your lawyer – presumably because you believe he is competent to do your case, you should ensure that there is a satisfactory agreement about your own legal costs. Your lawyer is likely to be equally concerned. Solicitors are obliged to have a complaints system in place, which includes complaints about legal costs. No lawyer is entitled to charge you for explaining his bill or for outlining the legal costs he is charging you. Any legitimate inquiry about legal costs should be dealt with free of charge. If you have complained unsuccessfully about the legal costs of your own solicitor, the matter does not end there, as you can complain to the Legal Complaints Service or Legal Ombudsman and Office of Legal Complaints. You may also have the legal costs claimed by your solicitor assessed under Part III of the Solicitors Act 1974.

If you complain about legal costs, he may well not wish to act for you but he cannot terminate his retainer without reasonable notice so you will not be left in the lurch!

The above is not a full account of all legal costs situations but only a brief explanation of the most important aspect of legal costs; for instance we have not mentioned conditional fees or contingency fees or described the difference between contentious and non-contentious costs or matters, which latter are defined in s.87 of the Solicitors Act 1974. Laurence Kingsley voluntarily subscribes to all the above obligations.

Have you been to a solicitor and received a large bill for legal costs? They may not be recoverable from you. Laurence Kingsley has frequently dealt with these situations and may well be able to simplify things for you and assist you to obtain a substantial or complete saving!

Unfair contracts and agreements for goods or services

Many people, including large or small companies, will have entered into agreements or contracts for goods or services with others, whose written standard terms of business seek to rule out completely, avoid, or limit, their liability for negligence, breach of contract, misrepresentation or whose terms even include a provision requiring an indemnity!

This is a frequently met situation and often a blanket attempt to avoid any type of Liability for death or injury resulting from negligence cannot be excluded at all. Any provision limiting or excluding liability for any other loss or damage caused by negligence must be reasonable.

With regard to contracts, usually the “unfair contract term” is part of a set of printed standard terms of contract, where in effect you will have been offered “a take it or leave it” choice. But this is not essential. Even a company or business may well have a remedy. The “guilty” party is often simply “trying it on”.

All is not lost, however, because in England and Wales the law will prevent the other party from relying on these terms, if they are unfair. The answer to whether a term is unfair or reasonable is not always straightforward and there are various guidelines to be considered.

Laurence Kingsley has often dealt with such situations and may well be able to assist you in defeating the other party’s attempt to evade justice!

Mediations or Alternative Dispute Resolution

In many cases – and the rules envisage this and the judges encourage this – you will be urged to settle a case by mediation or alternative dispute resolution (ADR).
Considerable pressure is invariably applied to litigants to reach an (amicable) settlement. Failure to try it out can result in the payment of costs. The courts want this because it saves them time and having to reach a decision. You may also think it a good idea because reaching a compromise means that no one wins and no one loses!!

The first thing to note is that what I have described above is not arbitration, which differs in several important respects. Arbitration is binding in law and, although very often quicker and less formal than litigation through the courts, it is far more formal than mediation and/or ADR. The latter is informal; “without prejudice” material may be used; the rules of evidence do not apply; and it is not binding unless an agreement is actually reached.

Although mediation/ADR is informal in theory it is of the utmost importance that a strong case is presented in the same way that a good lawyer will put forward one’s case in court. This is because the mediator is really in the same position as the judge; if you persuade the judge you will win. Likewise, if you convince the mediator, he/she will try to push the other side into a favourable settlement. So do not be fooled into thinking that you might as well do it yourself. It is a skilled job. Be represented at the mediation by an expert layman or lawyer.

Laurence Kingsley has conducted many mediations and alternative dispute resolutions and may well be able to help you and enable you to obtain successful outcome.

Adverse possession

Did you know that if you occupy someone else’s land openly without their permission and for 10 years – it used to be 12 years – you can claim it by adverse possession and obtain title to it at the Land Registry?

Very often the new owner originally had a licence from or paid rent to the paper title owner but then the situation changed and the adverse possessor, who was then a trespasser, gradually obtained a lawful title. It is sometimes thought that it will be sufficient to erect a fence around the land and that this will be conclusive evidence in favour of the adverse possessor or squatter but this is not always the case. Other factors like actually making use of the land are just as important.

The recently changed law is now full of pitfalls but we have done several of these cases in the past few years and Laurence Kingsley can help you, the trespasser, to obtain title or you, the owner, to defeat the adverse possessor.

Have you recently had an accident?

Have you been hurt at work?  Were you in a motor accident?  Were you bitten by a dog?  Did you suffer an injury in someone else’s house or premises?  Or even hurt yourself just tripping over on the pavement?  The possibilities are virtually endless and the field of personal injuries is very wide!!

 

Your injury may have been due to a one-off incident or may have been caused by exposure to a harmful environment over a period of years.  Once upon a time one could simply sue for the injury but nowadays there are all sorts of hoops, through which one has to jump – from getting a medical report to complying with all types of protocol and all this before time runs out, which is normally only three years.

 

What about health and safety?  When can the culprit’s criminal conviction be helpful in your own civil action?  When does a protocol not apply?  Does one sue for breach of a statutory duty or breach of some statutory regulations or simply for common law negligence or both?  Was the injury cause by a trespass or by a nuisance?   Does res ipsa loquitur apply?  These and other problems result in claims for damages for personal injury no longer being as straightforward as they used to be.

 

Laurence Kingsley has frequently dealt with these situations and may well be able to simplify things for you and assist you to obtain substantial damages!