Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31reduced to £35,000 + VAT on the grounds of proportionality. Further reference is also made to BNM v MGN Limited [2016] EWHC B13 (Costs), in which the originally assessed bill of £167,389.45 was reduced to £83,964.80 on the grounds of proportionality. Risks and rewards The shortfall between the solicitors’ costs and amount assessed/agreed will have to be met by the client (subject to retainer conditions.) This is too much of a risk, one that has now seen the rise of litigants in person. In the survey, a staggering 78% have seen a rise in the number of litigants in person. Given the cut backs made to legal aid, access to justice is limited, resulting in more litigants trying to deal with their case themselves rather than seeking professional, regulated legal advice. There is a risk placed on the litigant in that they may not be able to afford the services of a solicitor and, even if they can, there is no guarantee that they will recover all costs. Furthermore, the costs of the action will soon outweigh the substantive action. The downside to rising numbers of litigants in person is that it is incredibly frustrating for local authorities as these litigants are generally unaware of the law and procedure. Courts also look favourably on litigants in person. This can also be very difficult for local authorities as they and the litigant in person are not on equal footing. As litigants do not always take a commercial or proportionate view, this is increasing the amount of judicial time spent on these cases. The argument for ADR There is unfortunately a large backlog in the courts up and down the country. Due to this, the judiciary itself has asked parties to consider ADR. ADR can be very successful if used correctly, although I do not believe Online Dispute Resolution to be a good means of ADR. This method simply serves to increase vexatious and unwarranted complaints online given that we are now in a society where a significant number of people hide behind their computers. The key to making ADR successful is to be open and honest. Unfortunately, ADR conducted in the past has not always been on an equal footing. The mediator is there to try to reach an agreement where both parties are moderately happily. There will be no winner or loser in mediation. There will be bruises on both side but it does mean that neither party will lose all and there are the oft-discussed time and money savings. It is interesting to note from the survey that 64% use ADR occasionally and 21% use it frequently. What I do consider to be alarming is that only 38% of local authorities have increased the use of ADR over the last three years. We have many private practice firms as clients and they have all noticed over a 50% increase in ADR, mainly due to the backlog in the courts and their clients’ demand for a quicker, definitive answer. ADR and costs litigation ADR is increasing in costs litigation. This can be just as complex and costly as the substantive action. The rise in the use of costs ADR is due to the need for speed in the process, mitigating costs and to give clients increasing control over their cases. Failure to consider ADR could result in costs consequences, particularly when a party unreasonably refuses to use ADR. Usually, costs disputes hinge on preliminary issues and once these are resolved settlement is generally achieved or at the very least, the issues are significantly narrowed. There are many different types of ADR available in costs cases; the most common forms are mediation, assessment on the papers and expert advice. The benefits of costs ADR compared to the normal route through the courts is that the parties get to choose the person they would like to deal with their case. Unfortunately, in the courts you are unable to select a specific judge as the same is allocated on an experience/availability basis. A further benefit is that the mediation is conducted on a date and at a venue that is convenient to both parties, whereas you have to travel to the applicable court on a date that suits the court. Furthermore, the mediator’s fees are less than the Court fees which are continually increasing. The main difference between court assessment and mediation is that the judiciary is there to resolve an issue after hearing the representation for each party, whereas a mediator is there not only resolve an issue but to get the parties working and negotiating together. Each party can speak individually in a private room about what they are looking to achieve. A mediator is there to settle the matter where possible, not necessarily to state whether a point is right or wrong. A costs mediator can come in different forms but the professionals who are best placed to deal with this are either qualified mediators or costs lawyers. Costs lawyers deal with costs day in and day out and have to undertake a rigorous training programme to qualify. What is clear from the survey and recent trends is that ADR is increasing. Parties need to learn the advantages of using the same but also understanding the difference between ADR and court hearings. A process of education and raising the profile of successful ADR agreements is essential, even if the details are anonymised. Jessica Swannell is a Senior Costs Lawyer and Practice Manager of A&M Bacon Limited. A&M Bacon Limited is a Member of the Law Costs Draftsman Framework for Central and Local Government. It is alarming is that only 38% of local authorities have increased the use of ADR over the last three years. We have many private practice firms as clients and they have all noticed over a 50% increase in ADR, mainly due to the backlog in the courts and their clients’ demand for a quicker, definitive answer. October 2016 LocalGovernmentLawyer 27