Other instances includes failure to follow practice directions, and in some cases, acting in an unnecessarily belligerent manner.
In Hong Kong (and many other Common Law jurisdiction), during the pre-Civil Justice Reforms era, 'macho', 'tough' and 'aggressive' litigators may be prized by lay-clients.
However, with the implementation of the Civil Justice Reforms (CJR), 'macho', 'tough' and 'aggressive' litigators may end up causing more harm to their clients.
Willingness to reconcile and compromise is, therefore, the new king in Hong Kong's new litigation landscape where the laws requires legal practitioners to advice their clients the importance of settlement negotiations.
Furthermore, the amount that is ordered by the judge is in direct correlation to the strength or weakness of the claimant's case brought herewith.
Typically a claimant will be outside the jurisdiction of the court: the law of security for costs recognises that orders of the court relating to payment of a party's legal costs can be very difficult to enforce in non-common law jurisdictions, and so will order security to be provided.
Security is usually provided in the form of a bank cheque paid into the court, or held in a trust account operated jointly by both the claimant's and defendant's lawyers.
The law of costs is often known as the English rule and is contrasted with the American rule—the general rule in the United States that legal fees may be sought only if the parties agree by contract before the litigation, or if some special act or statute allows the successful party to seek such fees.
[7] Generally, U.S. state court judges have no common law right to award such fees against the losing party.
[14] The 'limit' as to what a receiving party may recover is determined by what they are liable to pay, as opposed to what they may have actually paid in legal fees.
However, since 2008 s. 194 Legal Services Act 2007 allows the court to order a party who loses against pro bono representation to make an appropriate charitable donation in lieu of costs.
If a case is allocated to the Small Claims Track,[18] only specific limited costs such as fixed court fees are usually awarded.
[19] There are also fixed costs for road traffic accident (RTA) claims that settle before they are issued;[20] and in certain cases brought by HM Revenue & Customs.
[23] The court will take account of the conduct of the parties and may vary the usual costs order in the event of misguided or dishonest behaviour.
The court will especially be aware of any formal offers to settle made under Part 36 of the Civil Procedure Rules.
[36] In that case, Mr. Justice Andrew Li observed"...I agree that there was "some" evidence to suggest that P [Patrick Wang Ho Yin], in his capacity as the handling solicitor, might not have been very sincere or genuine in his attempts to negotiate for the settlement...
I find, P, by issuing the Summons even before proper negotiations with D1 had taken place, had conducted the matter in an oppressive manner.
For example, before the parties even concluded their first round of negotiations on some matters which could only be described as "a trivial" in late June 2017, P in his email dated 26 June 2017 to D1's former solicitors, stated that "our client’s sincerity for amicable solutions between the parties has already been exhausted ... we hereby reserve out client’s rights to apply for the direction of the court and commence civil proceedings for contempt of court, if any" (emphasis added).
In this case, the Court has found that Mr. Wang's belligerent conduct has caused the parties to have incurred costs of which could have been avoidable.
If a case is issued since 1 April 2013, and is allocated to the Multi-track, the parties can be forced to submit a budget for their costs, which the court can then approve.
[56] If the court has not been able to approve a party's budget, for example, due to the case settling before it was able to do so, then different rules apply.
However, these rules are similar to those relating to estimates: if a party's costs claim exceeds its budget by 20%, then the difference must be explained.
The level of reduction can mean that the bill is reduced in some instances substantially, but in most cases at least 80% of the costs originally sought will be allowed.
[69] Unless instructed under a damages-based agreement, lawyers in England and Wales are not permitted to work for a share of damages awarded as this would amount to champerty.
The client can alternatively apply to the Law Society for a remuneration certificate in respect of costs arising from other than litigation.
The main requirement is that before entering into the CFA the solicitor must advise the client, amongst other things, as to its effect; of alternative funding methods; and whether he has any interest in nay particular insurance policy.
[81] These are a type of contingency fee, i.e. the solicitor and barrister agree to take a percentage of the client's damages if the claim succeeds.
If the restaurant successfully defends the claim, they pay the supplier's costs and recover the same amount from the unsuccessful claimant.
This can cause injustice when the unsuccessful claimant is insolvent and the successful defendant is still liable for third-party costs.
The courts will only rarely allow a "cut through" of the third-party's costs to the claimant[86][87] but the interests of justice prevail.