Costs Of Civil Litigation Research Articles

The role of expert evidence in civil litigation: a critical analysis (Part 1)

Section 34 of the Constitution of the Republic of South Africa provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. A number of foundational principles that underlie the South African law of civil procedure had been afforded express recognition by this section. One of these principles entail that the duration and costs of civil litigation should be reasonable. In the past decade, or so, there have been several initiatives to give effect to this ideal of civil justice for all. Despite this, there are still several impediments in the South African law that causes civil trials too be exorbitant and time-consuming. One of these impediments relate to the presentation of expert evidence testimony. Part one of this article will critically discuss the historical development of Uniform Court Rule 36(9), its recent amendments and the critique raised against the procedure. In part two the position in relation to the presentation of expert witness evidence in England and Wales, and Australia, as well as its possible contribution to the South African law will be discussed. It will be argued that the current procedure relating to the presentation of expert evidence in South Africa still has certain shortcomings and that the Rules Board will have to intervene to ensure that the procedure enhances access to justice in civil matters.

Эффективные проверочные производства в гражданском и арбитражном процессе

Judicial instances are the factors of key importance in ensuring the effectiveness of court protection, an important condition for the effective implementation of the right to correct a judicial error, and minimize the costs of civil litigation. What is the role of appeal and cassation in ensuring the efficiency of Russian civil procedure at the present stage? Do verification procedures need to be rationalized at a fourth level? The answers to these questions are offered.

‘No Win, No Fee’, Cost‐shifting and the Costs of Civil Litigation: A Natural Experiment

Expenditure on legal services has been rising for much of the last two decades and has attracted considerable policy attention in the UK. We argue that an important reason for this increase lies within the introduction of 'no win no fee' schemes in 1995 and a subsequent amendment which allowed claimants to shift additional costs (introduced by the 'no win no fee' schemes) onto losing defendants in 2000. In this paper, we evaluate the effect of the second of these reforms - that relating to the shifting of costs. We describe how this may have exacerbated the negative externality often associated with cost-shifting, which arises from losing litigants being held liable to pay their successful opponents' costs. We use a dataset consisting of (daily) employers' liability claims to undertake a regression discontinuity design (RDD) in order to see whether claimants' litigation costs increased following the introduction of the cost-shifting amendment. We find that costs increased by approximately 25% after the new policy was introduced, consistent with theoretical predictions. As well as providing a rare test of underlying theory (and the first with UK data), our analysis also points towards the need for more careful evaluation of policy in order to avoid unintended consequences of reform.

THE LATE AMENDMENT OF PLEADINGS – TIME FOR A NEW APPROACH? Randa v Radopile Projects CC 2012 (6) SA 128 (GSJ)

Section 34 of the Constitution encapsulates the ideal of access to justice in civil matters, and provides that everyone has the right to have any dispute that can be resolved by the application of law, decided in a fair public hearing before a Court or, where appropriate, another independent and impartial tribunal or forum. This includes the requirement that the duration and costs of civil litigation should be reasonable. Unfortunately this objective is sometimes defeated by unnecessary and costly delays, due to tactical and careless postponements of civil matters in both the high and magistrates’ courts. One of the main culprits in this regard is the procedure of the amendment of pleadings after a trial has commenced. Our courts have always followed a very liberal approach in this regard in that an application for amendment will usually succeed, unless it is made mala fide or will lead to prejudice to the opponent, which cannot be cured by a cost order and, where appropriate, a postponement. In Randa v Radopile Projects CC (2012 (6) SA 128 (GSJ)), Willis J advocated a new approach in deciding of whether an application for an amendment should be granted. This approach is also in line with the latest developments in England, where the Courts recently favoured a more conservative approach in relation to applications for amendments at a late stage. This case note will firstly focus on a brief discussion of the historical development of the Court’s discretion in allowing amendments to pleadings. Secondly, the decision in Randa will be critically analysed. Thirdly, the latest developments in the English law will be discussed, and, lastly, some alternatives will be considered for legal reform. It will be argued that the Supreme Court of Appeal should alter its approach to the late amendment of pleadings in favour of a more conservative approach, as evidenced by the current English approach, alternatively that the legislature should intervene to capture the scope and ambit of a Court’s discretion in deciding whether an application for the amendment of a pleading after the commencement of a trial, should succeed.

Equipping Civil Procedure Students to Protect Clients in Discovery

This paper selects amendments to the Federal Rules of Civil Procedure that bear promise for cutting the costs of civil litigation. It suggests how to teach students (and lawyers) to take advantage of the amendments to protect one's client from overly costly or abusive discovery. It also includes an exercise designed to help law students cultivate a view of discovery that is less adversarial and more focused on productively using the Rules. It is an example of the kind of professional identity formation to which the Carnegie Report (2007) suggested law schools pally too little attention.

Linking Patent Reform and Civil Litigation Reform

Patent reform increasingly focuses on discovery. Discovery is perceived as disproportionately expensive and burdensome in patent cases. Excessive discovery is said to fuel so-called “patent trolls” and impose an unhealthy tax on innovation and competition. These supposedly exceptional problems have led to exceptional patent-only reform proposals, such as delaying most discovery for over a year and reversing the 75-year old allocation of discovery costs. Treating patent litigation as exceptional has a siloing effect. Patent reform debates ignore parallel debates over general civil litigation reform that raise the same arguments about disproportionately expensive and burdensome discovery and propose their own set of reforms. This Article links patent reform to civil litigation reform, arguing that patent discovery is not exceptional in its costs, supposed effects, or causes. Instead, patent discovery is representative of a subset of discovery-intensive civil cases. The main problem with discovery in patent cases is not abusive tactics of “patent trolls” or inherent technical complexity but rather complex and open-ended remedial doctrines. Doctrinal complexity is not unique to patent litigation. Pinpointing the source of patent discovery problems also suggests a solution – delaying costly and burdensome remedial discovery until after liability is established. This solution need not be limited to patent cases. Greater use of staged litigation – litigating and resolving some potentially case-dispositive issues before any discovery or other litigation occurs on more discovery-intensive issues – is a potentially valuable tool for reforming general civil litigation. Notably, staged litigation preserves the plaintiff’s access to information and right to a jury trial, overcoming objections to other efforts to reduce civil litigation costs, like Twombly/Iqbal plausibility pleading.

'No Win, No Fee', Cost-Shifting and the Costs of Civil Litigation: A Natural Experiment

'No Win, No Fee', Cost-Shifting and the Costs of Civil Litigation: A Natural Experiment

Referral fees – the business of access to justice

The paper examines the controversial issue of referral fees for personal injury claims. It looks at the function of referral fees in the civil justice system, their relationship to the guarantees of access to court and the right to seek legal assistance in ECHR Art 6, and the debate about promoting access to justice or a litigious society. It examines the experience of the referral fees market in England and Wales, where the costs of referrals have risen dramatically and there is concern that referrers are auctioning their customers to the highest bidder rather than helping them find competent lawyers. Sir Rupert Jackson recommended banning referral fees in his report on the costs of civil litigation, and the Government has announced it will implement this recommendation. The paper considers the potential effects of a ban on competition in the legal services market and its compatibility with UK and EU competition law. The paper argues that a combination of better regulation of the industry and proper regulation of costs rules is a better and more proportionate way of controlling legal costs and the quality of legal services than an outright ban. While referral fees have not delivered all the benefits one would expect from a for-profit independent referrals service, they can help people obtain information about their legal rights, and competent lawyers to enforce them. This service is particularly valuable given that the state has substantially cut public funding of the civil justice system in recent years.

'No Win, No Fee' and the Costs of Civil Litigation

Expenditure on civil litigation in the UK has been rising for much of the last two decades and has attracted considerable policy attention. We argue that an important reason for this increase lies with changes to the implementation of `no win no fee' arrangements. These interventions allowed claimants and their lawyers to shift the risk of paying legal costs onto defendants and, as a consequence, reduced the incentive for claimants to monitor these costs. We use a simple theoretical model to illustrate how these interventions may have increased costs before presenting evidence using data on employers' liability claims. As well as helping us to understand the role of previous policy in relation to trends in litigation costs, our results also allow us to assess current policy proposals aimed at reversing these trends. In addition, the paper indicates the important interplay that exists between the effects of legal fees and procedural rules for allocating costs between litigants; an issue of wide jurisdictional interest.

Jackson and Before-the-Event Insurance: A Missed Opportunity or a Pitfall Avoided?

This article looks at particular recommendations of Lord Justice Jackson in his recent review of the costs of civil litigation. The review proposes to make radical changes in a complex package of measures which, if they were introduced, would be even more significant than those procedural reforms set in train by Lord Woolf thirteen years earlier. The review has already generated much discussion in the legal profession, but it has escaped the attention of academic law journals. Here the focus is upon one particular topic considered in the report: the potential use of before-the-event insurance (BTE). This is used to make wider points about the problems the report identifies and the solutions it proposes. The effect of reforming this particular means of obtaining legal representation could have wide repercussions upon litigation. Whether extending BTE would lead to an increase in access to justice is a question which has divided practitioners; whether changing BTE could provide a more workable solution than some of those put forward by Jackson may provoke a more favourable response. The argument here is that more attention should be paid to this area than has previously been the case: it may hold the key to access to justice for many potential litigants.

Jackson Civil Litigation Costs Review – Impact on the Personal Injury Market

Jackson Civil Litigation Costs Review – Impact on the Personal Injury Market

The Phenomenon of Mediation: Judicial Perspectives and an Eye on the Future

The “Review of Civil Litigation Costs: Final Report” by Sir Rupert Jackson was published on 14th January 2010. This contains yet further support for ADR, and mediation in particular. Prompted by the publication of the Final Report, this paper sets out a few points about mediation, its function, its place in civil justice, the likely effect of the European Mediation Directive, the role of mediation in the maritime field and, in particular, expresses a short note of concern about how mediation might develop. The writer does not purport to cover the entire ground but touches upon a few selected points. In particular, the paper focusses on certain views expressed, prior to the Final Report, by senior members of the English judiciary in support of the wider use of mediation.Mediation is something of a global phenomenon, as a short glimpse on the Internet alone will attest; but this note is primarily directed to the picture in England and Wales. Mediation is in many ways a remarkable process; vigorous, dynamic and effective. Its wider use is to be encouraged; its development should be handled with care.

Access to Justice in lower value clinical negligence claims

In May 2009 Lord Justice Jackson published his Preliminary Report into the costs of civil litigation. His objective focuses on promoting access to justice at proportionate cost. Unsurprisingly, Claimants' costs in personal injury and clinical negligence claims are under the spotlight, principally, it seems, because of concern that the recovery of success fees and After The Event (ATE) insurance premiums is rendering Claimants' costs disproportionate to the damages recovered. This article will: Review the existing Conditional Fee Agreement (CFA) and ATE insurance funding landscape for clinical negligence claims worth less than £60,000; Explore the potential impact on access to justice for Claimants if partial costs shifting is introduced; Suggest some alternative ways of controlling costs.

Mahon Lecture

The law of federal courts is now a free-standing subject in every law school curriculum, taught in law schools as federal jurisdiction and in distinct courses as federal practice and civil procedure. So much of this is recent. After all, the Federal Rules of Civil Procedure which fueled a sea of change in American litigation are only 65 years old. Its youth in the law is easily demonstrated. For example, the doctrine of standing did not appear in anything like its present form until after World War II, responding as it did to the growth of public law and the expanded use of private litigation to enforce federal norms. We saw the traditional bi-polar suit by a plaintiff against a defendant complaining of breaches of duty by private persons, joined by suits by private persons complaining of state and federal government failures to comply with the law. These newly emerging public lawsuits typically sought orders from federal courts directing state and federal officials to obey federal law and remedies for the injuries suffered by those violations. I point to these as examples of the "law" of federal courts with which we have busied ourselves, along with a myriad of other "reforms" and concerns, such as costs of civil litigation and the role of judge and jury in district courts. In this important work with the trees, we risk missing the forest, whistling past macro changes in the role of federal district courts and courts of appeal in turn. When we widen our lenses, we find disturbing trends, such as the decline of trials with federal trial courts looking like European courts. We also find a suspiciously parallel flow of dispute resolution to the administrative agencies.

A Conflict Resolution Approach to Public Administration

Public administrators often have to deal with conflicts. However, many public administrators have not been adequately exposed to the skills and rationales of conflict resolution. Ample literature about conflict exists in sister disciplines such as sociology, international relations, and labor relations. These studies focus on the impact of conflict, the nature of conflict, the players in the conflict, and possible strategies for conflict resolution. These studies can help public administrators better understand the nature of their work as well as their roles as conflict resolvers, conflict observers, or parties to conflict. The field of public administration could benefit greatly by incorporating the conflict resolution perspective into its teaching and research. Public administration literature has dealt extensively with how to execute the will of the people effectively and efficiently (Wilson, 1992; Gulick and Urwick, 1937; Brownlow, Merriam, and Gulick, 1937); how to deliver public services entrepreneurially and innovatively (Savas, 1987; Osborne and Gaebler, 1992); and how to be accountable and responsive to the public in general (Waldo, 1948; Ostrom, 1973; Goodsell, 1986; Rourke, 1992; Ingraham and Romzek, 1994). However, the field has had much less emphasis on conflict resolution, although sporadic studies have described the conflictual nature of public administrators' work or addressed microlevel (individual and organizational) conflict resolution in public organizations (Simon, 1957; Lipsky, 1980; Vizzard, 1995). The Civil Justice Reform Act of 1990 (28 U.S.C. sec. 471 et seq.), the Administrative Dispute Resolution Act of 1990 (Public Law 101-552), and the Negotiated Rulemaking Act of 1990 (Public Law 101-648) explicitly expressed support, outlined methods, or stated requirements for federal agencies and departments to implement alternative strategies to resolve their administrative disputes (Madigan, 1992; Susskind, Babbit, and Segal, 1993; Manring, 1994; Deavel, 1994).[1] These acts are Congressional responses to the incredible growth in costs of civil litigation and delays that contribute to those costs.[2] They send out a strong message that conflict resolution is an indispensable component of contemporary public administration and that it is time the field started paying serious attention to it. Indeed, moving into the 1990s, the conflicts public administrators confront are much more complex, multifaceted, and intense. Besides the typical interpersonal and interorganizational conflicts, such as personnel grievances, labor disputes, and organizational jurisdiction disputes, many institutional-level conflicts have also surfaced or intensified. Such conflicts include economic development versus environmental protection; rising public interest concerns versus the call for more dependence on private methods; decentralization of power versus the need for coordinating larger tasks of high technology development and global competition; increased social wealth versus the enduring problems of poverty and crime; shaken public confidence in government versus increased need for confidence in the nation's economy; uncompetitive compensation versus the requirement for high-quality public service personnel; organizational uncertainty versus increased reliance on employee loyalty to public service; high-level national debt versus increased pressure for public spending on social and environmental programs; postmodern democratic demands versus modern quests for efficiency and effectiveness; special interests versus the general public interest; national homogeneity versus cultural diversity claims; need for cooperation versus tensions among ethnic groups and between genders; nationalism versus internationalism; and promotion for free international markets versus new tariffs to protect domestic industries. The length of this list, which is by no means exhaustive, underscores the message that today's public administrators cannot manage well without adequate understanding of, and skills in, conflict resolution. …

Pretrial Bargaining and the Design of Fee-Shifting Rules

Legal rules for allocating the private costs of civil litigation, or rules, provide powerful incentives for settlement. Within the context of a direct-revelation mechanism, the fee-shifting rule that generates the highest probability of settlement bases the allocation of costs upon the proximity of the court's award to the pretrial announcements. This mechanism resembles Rule 68 of the Federal Rules of Civil Procedure and other offer-based rules. In a simple extensive-form game, if the litigants have asymmetric information about the level of damages (probability of prevailing), then Rule 68 increases (decreases) the settlement rate.

Rand study notes new computer tools to cut costs of civil litigation

Rand study notes new computer tools to cut costs of civil litigation