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The Expressed terms in the title may be confusing to many consumers who choose to embark on an adventure in the Courts. To fully understand the costs involved and the risk which exists, TESS clients have a need to know the fundamental principles of litigation and the risks which might flow from proceedings and whether or not your case will be meritorious.

It is very important for all Timeshare consumer to clearly understand what can occur, what events can flow and what suffrage can result in the event of a meritorious or unsuccessful case.

Advising on the cost Consequences of Litigation

In the case of Thomas -v- Albutt [2015] EWHC. Mr Justice Morgan considered, among other things, the duty owed by a barrister (and lawyers generally) to warn about the risks of litigation.

When a client asks for advice, they fundamentally do so, as they are unsure of the events which might transpire if they do or do not take a course of action.

When seeking advice, it is fair to say that potential clients have a natural need to engage with someone, who claims that they are in a position to assist them. Being induced to meet, converse or engage with legal advisors, many potential clients retain the fundamental entitlement to believe that the representations made [in any inducement process] are reasonable and that they will be told unfettered truths. Equally potential clients should be given reasonable advice and have explained, the risks [they may attract] if they pursue an advised course of events.

In all walks of life, you will meet friend’s, allies and those who can emotionally support you and the representations you make. In doing so, they can reinforce your understanding, which in turn can lead to you to pursue a course of events that could cause you to later regret your actions. When seeking advice from a legal professional, you are paying for expert advice and in some circumstance may not be what you expect to hear.

Many legal professional bodies are becoming alarmed at the growing market where untrained and unprofessional people are failing to inform potential clients of the risks of termination contractual obligations. Some seek or avoid certain unpalatable issues and recklessly proffer advice without fully explaining the risks which might flow from a particular course of events. They seek to support untenable positions, encourage paternal litigants to protract unwinnable cases and blatantly avoid advice on the consequences of lost legal actions. They also appear to do so, for substantial upfront fees and promises of certainty, when such is not the case.

All clients should [when seeking legal advice] expect two distinct and real pieces of guidance. Clients of TESS fully understands that when seeking counsel, two inconsistent facts have to be fully explained.

All litigants need confident advice on which they can rely upon and they need cautionary advice about the risks they may attract if they act upon the advice. TESS, therefore, have the unhappy, yet necessary duty of trying to satisfy both requirements and simultaneously.

Case Law

In the case of Thomas -v- Albutt [2015] EWHC a barrister was found lacking and as to the lacklustre or negligent advice given because he failed to tender advice about the risks involved in litigation.

Litigation the Necessary Evil

When a client has entered into a contract and believes that that the obligation(s) which flow from that contact are erroneous, unfair or inequitable, they may have a need to rescind the contract. In some cases, our clients express a need to take another party to task about their performance of the contract, or you seek compensatory damages. Either or, the quest to pursue another does attract risks.

The Adventures

All cases are different as clients can wish to pursue many different adventures, a claim, a defence, or a declaration. At the point a person decides to embark on the legal quest, they must have an objection and that objects of that quest will be to seek a benefit from the matter which might flow from their mission.

In the case of a claim, this will be in damages and from a defence the removal of a blight or in the case of a declaration the enjoyment of an established benefit or removal of a perceived blight.

At the time the person makes the claim, they are in subjection to whatever presently exists and in reality seeks to alter that position for something which either maintains, reinforces or betters it.

If they lose the action the existing position will be maintained as the other side will have successfully resisted the contentions you have tried to assert. As you have lost your pursuit, unexpected costs may be incurred and in the form of your own wasted costs and those which might flow from the other party. These other party costs are generally referred to as adverse costs.

If you win your case, you will receive the benefit sought, will not attract the adverse costs and may receive [from your opponent] a proportion of the costs you have paid if you did win and your adventure has been deemed just.

I suggested “may win”

When I suggested “may win” normally costs you have incurred may flow from a meritorious victory, however, the costs paid are subject to the court’s digression.

The Courts Digression

To make the fundamental point if a client pursues a damages case for £5,000 and incurred £100,000 in costs the Court is likely to suggest that the costs a party paid were disproportionate. In this event, a meritorious litigant could find that the courts reduced the costs award vastly. That said if the issues are very complex or needed to be established for the greater good, the court may take a more lenient approach.

In the event that a party argues many issues and is only victorious on a few, again the court may feel that the winning party was unreasonable in making the many allegations and therefore limits the award to cost to those issues which were successful, leaving the meritorious litigant with a recovery loss.

Another favourite is if a claim is issued for say £10,000 and the courts decide that you are entitled to £5,000 and that sum was offered by the defendant before the case commenced, the court might suggest that you were unreasonable in refusing it, that the litigation was unnecessary and may refuse you your costs. In some circumstances, you may also have to pay the others sides cost as well.

The main theme is that that you are required to be reasonable and at all times or your costs claims could be affected whether you win or you lose. Costs are a real risk and could alter the landscape of what can be perceived to be a win. These are generally referred to a part pyrrhic win (a win at great cost).

That said, it is unlikely that you will win all the legal cost you have paid. To be awarded costs the Court will [after the trial of issues and damages] consider, the way you have behaved, a number of costs you have paid, the actions taken by your opponent and many other circumstances.

One aspect of cost assessment is that when a court or your opponent considers the reasonableness of the costs, they do have a voice in the discussions and can make challenges in respect to the reasonableness of each and every cost head.

It, therefore, has to be a consideration, that if you win or lose a case, you will probably not have returned all the costs you have paid. Therefore, any reasonable and cogent advisor should assist you by fully explain this to you before you commence or defend legal proceedings.

Last modified: 12th March 2020