Lithium Flower
10-09-2008, 12:47 PM
I just came across an interesting article in The Times, here (http://business.timesonline.co.uk/tol/business/law/article4724597.ece) and have reproduced below the main thrust of it.
What do you guys think? If a defendant or claimant have proved their case and won, should the party in the wrong be made to reimburse their expenses? Bear in mind, quite often the fees themselves are much more than the damages the parties hope to obtain.
Would it promote the goal of 'inexpensive, quick and efficient' justice for all or deride from it?
What about forcing people who have been wronged to have to bear the often quite significant cost of a trial? If they have to pay their lawyers themselves regardless of outcome, won't it discourage people from pursuing legitimate claims because they just cannot afford to foot the bill?
What about people accused of crimes and then acquitted. Should the government not bear whatever legal expenses they have incurred in clearing their name? Does it not strike as a little unfair that the State prosecutes someone for a crime, is unable to prove it and the innocent person has to bear a lot of expense for no fault of his own.
Anyone have any personal experiences they would like to share?
In the United States, the parties normally bear their own legal fees irrespective of the outcome of the case. In Britain, the rule is very different: loser pays. There are a number of statutes in the United States that require fee shifting in certain kinds of cases such as employment discrimination, civil rights violations or copyright infringement. Few ever require a losing plaintiff to pay the winning defendant’s fees...
Accordingly, defendants sometimes pay when they lose but plaintiffs generally do not.
[According to Polls] The American public harbour the perception that the system is saturated with “frivolous” cases brought by unscrupulous lawyers.
Quite often, it is the lawyer, not the client, who is the decision maker with regard to making a particular claim or defence. There is law on the books [A federal statute] to deal with American lawyers who bring on frivolous claims or defences [but is quite often not enforced and] in the real world lawyers routinely advance claims or defences having a low probability of success without much fear that they will be brought to book.
Loser pays, it is argued, would disincline would-be litigants to assert good-faith positions. Inflexible application of the rule, moreover, would fall most heavily on the less affluent members of society who, despite a meritorious case, must run the double risk of not only losing but also sustaining a crushing judgment for the legal fees of a corporate behemoth. Only the well-heeled could afford to have their day in court.
There is no consensus that loser pays reduces the filings of lawsuits. The UK and Germany have loser pays and, along with the United States, have the highest litigation rates among developed nations. Research, moreover, in Alaska, the one state that has adopted a fee-shifting regime, provides no evidence that frivolous cases are deterred. Alaskan defence lawyers say that the loser pays rule has only increased the value of plaintiff’s cases.
When Max Mosley sued the News of the World for invasion of privacy, he was awarded only £60,000 in damages. But, on top of it the High Court gave him an estimated £450,000 in legal fees which he had paid his lawyers for the trial. This could not have happened under the American regime.
The controversy, of course, applies only to civil cases. Even in England, loser pays does not happen in criminal proceedings. If the “loser pays” logic is sound, however, an innocent defendant should recover from the Government the cost of his defence.
But American rules of procedure are supposed to “secure the just, speedy and inexpensive determination” of every case. So judges must take account of the high cost of litigation, especially when they deny summary judgment in close cases or order protracted depositions or blunderbuss document production...
Emphasis and summary mine.
What do you guys think? If a defendant or claimant have proved their case and won, should the party in the wrong be made to reimburse their expenses? Bear in mind, quite often the fees themselves are much more than the damages the parties hope to obtain.
Would it promote the goal of 'inexpensive, quick and efficient' justice for all or deride from it?
What about forcing people who have been wronged to have to bear the often quite significant cost of a trial? If they have to pay their lawyers themselves regardless of outcome, won't it discourage people from pursuing legitimate claims because they just cannot afford to foot the bill?
What about people accused of crimes and then acquitted. Should the government not bear whatever legal expenses they have incurred in clearing their name? Does it not strike as a little unfair that the State prosecutes someone for a crime, is unable to prove it and the innocent person has to bear a lot of expense for no fault of his own.
Anyone have any personal experiences they would like to share?
In the United States, the parties normally bear their own legal fees irrespective of the outcome of the case. In Britain, the rule is very different: loser pays. There are a number of statutes in the United States that require fee shifting in certain kinds of cases such as employment discrimination, civil rights violations or copyright infringement. Few ever require a losing plaintiff to pay the winning defendant’s fees...
Accordingly, defendants sometimes pay when they lose but plaintiffs generally do not.
[According to Polls] The American public harbour the perception that the system is saturated with “frivolous” cases brought by unscrupulous lawyers.
Quite often, it is the lawyer, not the client, who is the decision maker with regard to making a particular claim or defence. There is law on the books [A federal statute] to deal with American lawyers who bring on frivolous claims or defences [but is quite often not enforced and] in the real world lawyers routinely advance claims or defences having a low probability of success without much fear that they will be brought to book.
Loser pays, it is argued, would disincline would-be litigants to assert good-faith positions. Inflexible application of the rule, moreover, would fall most heavily on the less affluent members of society who, despite a meritorious case, must run the double risk of not only losing but also sustaining a crushing judgment for the legal fees of a corporate behemoth. Only the well-heeled could afford to have their day in court.
There is no consensus that loser pays reduces the filings of lawsuits. The UK and Germany have loser pays and, along with the United States, have the highest litigation rates among developed nations. Research, moreover, in Alaska, the one state that has adopted a fee-shifting regime, provides no evidence that frivolous cases are deterred. Alaskan defence lawyers say that the loser pays rule has only increased the value of plaintiff’s cases.
When Max Mosley sued the News of the World for invasion of privacy, he was awarded only £60,000 in damages. But, on top of it the High Court gave him an estimated £450,000 in legal fees which he had paid his lawyers for the trial. This could not have happened under the American regime.
The controversy, of course, applies only to civil cases. Even in England, loser pays does not happen in criminal proceedings. If the “loser pays” logic is sound, however, an innocent defendant should recover from the Government the cost of his defence.
But American rules of procedure are supposed to “secure the just, speedy and inexpensive determination” of every case. So judges must take account of the high cost of litigation, especially when they deny summary judgment in close cases or order protracted depositions or blunderbuss document production...
Emphasis and summary mine.