Making changes

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  • "... remember litigators are lumbered with a conundrum - if a case gets to court it earns more for the firm. "

    This is nonsense. Most good litigators do their best to keep cases out of court. Going to court is a last resort, and is generally a negative experience for all concerned, as well as being expensive for the client.

    But there are many cases that are simply not suitable for ADR, for example straightforward debt collection. Debtors who refuse to pay bills that are undisputed should be made to suffer in costs - why should the innocent claimant have to pay?

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  • Getting rid of loser pays would be the most ludicrous move perhaps in English legal history. It would encourage frivolous claims and attempts at farcical defences. More to the point, how does it square with the human right to have a case tested in Court? A party that wins its entire claim is then penalized because it did not accept an earlier settlement - even though any such offer must have been below its entitlement?

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  • "Effectively, this would move Woolf on a stage and bring about a desire to settle or mediate in all cases, thereby unclogging the court.
    Ideal in theory, but remember litigators are lumbered with a conundrum - if a case gets to court it earns more for the firm. Litigators are duty bound to do the best for their clients, but they must also remember the financial demands of their firm"
    This is just wrong. As a litigator my duty is to my client only, not the financial demands of the firm I work in.
    As for the proposal to scrap the loser pays principle entirely, it seems to me to be a double edged sword, for obvious reasons.
    Instead, Judges should use greater discretion than they do now to award costs on different bases in appropriate cases, to encourage the parties to settle.
    But in many cases, parties should be entitled to have their dispute determined by a third party if they cannot settle, without the threat of being penalised on costs - that's why we all pay taxes to have a court system.
    The idea that litigants are clogging up the court system is similar to the notion that the NHS would be far more efficient if it didn't have to deal with all the patients

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