Adverse costs are one of those topics which non-professional lawyers avoid, as it could put off a consumer from delivering a claim against an opponent which results in the non-lawyer losing a potentially well-paid job.
Every lawyer has a duty to make every claimant aware of the risks they face and that duty continues throughout the case (from start to finish). It has been reported that some non-lawyers assert a client has a “winnable” case, that a “fortune awaits them” and is “just around the corner”, they have a “slam dunk” case which attracts no risks. All the consumers have to do is, pay their upfront fixed fees, NOW.
In doing so, the conman asserts “when the case is concluded you will be enriched and beyond your wildest dreams“. These statements might excite your natural urges, might fill you will joy, however, they are designed to do just that. The truth is you are being lied to and to such an extent that you will potentially lose much more money if the case is delivered to the courts.
If you are faced with these assertions you seriously need to walk out and seek proper advice, as you are in the den of a conman.
If you don’t prove your opponent is liable YOU LOSE
If you prove your opponent is liable yet fail to prove any damages YOU LOSE
If you prove both liability and damages and your opponent goes bust YOU LOSE
If you win both liability and damages yet fail to win your costs YOU LOSE
If you win liability and damages and costs yet lose many interrogatories YOU LOSE
Risk exists in every legal action and that is a fact
That said, all potential litigants have an express need to know what risks they face.
The fundamental truth is, in any trial, there will be a winner and a loser, so in every case, one party will be paying the other’s costs. You need to consider WILL THAT PARTY BE YOU?
In the event, you are the claimant and have a requirement to not only prove your case but to win damages. If you prove the defendant has breached the contract or misrepresented the goods sold to you, then you need to establish loss and be awarded compensatory damages, for that loss. Should you have proven liability, yet don’t establish any monitory damages, you will have lost your claim. The simple rule is you have to win money. In one such timeshare case (which took over 4 years to get to court) the costs to both sides were £4 million each, the consumer proved the defendant breached the contract, yet failed to prove damages. They lost and adverse costs were awarded against them in an amount exceeding £4 million.
In most low value cases, litigants focus on what they will win if the claim is ‘successful’ and turn a blind eye to the costs, however, if a blind eye is turned initially, it will surface and become a stark reality when the case is up and running and legal bills are demanded. In many timeshare cases, you will face a well-financed claimant who will finance and run many arguments. If you win your claim, that claim is small in comparison to the potential losses of the defendant resort, as all their contracts might be exposed as a result of your well-funded case. This may cause them to advance highly complex arguments to avoid the potential of other claims which might follow from your win, thus the risk is greater for them, accordingly, they will fight harder causing costs to escalate.
What you have a great need to understand is that when issuing a claim against a well-funded resort, you instigated the claim not them.
In the event that TESS Law supports a consumer’s legal claim they will engage with others and finance your costs and potentially your adverse costs, so the consumer is fully indemnified against any forward liabilities.
Last modified: 7th July 2020