Litigation is expensive. There was no getting away from that. As lawyers, it is our job to conduct litigation in accordance with the overriding objective under the Civil Procedure Rules. This includes an obligation to conduct litigation reasonably and at a cost which is proportionate to the issues in dispute and the value of the claim. However, when using solicitors costs are unavoidable and even in small claims, there is a process to be followed which necessarily incurs time.

Lawyers get a bad rep for costs but in my experience most solicitors aren't looking to overcharge their clients, and most actually underestimate the time that they spend on matters rather than overestimate and therefore overcharge. Believe it or not, we do also think about things such as cost/benefit and occasionally ask ourselves questions such as whether, if we were the client, we would feel that the letter was worth the time that we have spent on it!

Whilst litigation is inherently expensive, there are some things that you can do to keep your costs down:-

1. Choose your solicitor wisely – some firms are more expensive than others. However often it is a case of getting what you pay for. Going for the solicitor with the lowest hourly rate will not always save you costs in the long run. Solicitors’ hourly rates tend to depend on their experience within the industry, and their level of expertise in the particular type of case that you are dealing with. A solicitor was very little experience in the type of claim that you have might spend far longer doing the same work and therefore end up costing you more. It is always important to discuss with lawyers their expertise in your claim before proceeding to instruct them.  You should never be afraid to tell them you need to think about it before instructing them – or even that you want to speak to a few firms before making your final decision.  You should also be wary of the solicitor who won’t give you the time of day without formal instructions.  There’s limited information we can provide without seeing the documents, but most solicitors will be happy to have an initial telephone discussion to confirm that your claims fall within their area of expertise.

2. A bigger team doesn't always mean lower costs - some clients become quite concerned about the size of the lawyer’s team. They feel that if there are far more junior lawyers to be working on the case, more work will be done at the junior level and costs will be saved. Often this isn't the case. Whilst having junior lawyers and using those junior lawyers to carry out the work that is appropriate for them to do does save costs, and is an important part of the overriding objective, sometimes in very large teams it is not the same junior lawyers working on the case time and time again. You will have a partner or perhaps an associate who "runs point" on your case. However trainee solicitors and paralegals will change from time to time. If they change very frequently because there is a very large team this often involves an element of duplication as they get up to speed. Sometimes having a smaller team means that everyone knows more or less what is going on which can reduce that time spent.

3. Listen to the advice – aside from the law firm that you choose, the majority of the costs of litigation are actually down to the client, not the lawyer. The obligation to conduct litigation reasonably and at proportionate cost is more an obligation on the client than the solicitors. We advise you on these obligations but ultimately we are only acting on your instructions. If you instruct us to bombard the other side with paperwork, we will advise you about the potential cost consequences of doing so as conduct matters greatly in the costs decision at the end of litigation. However if you continue to instruct us to do so and you accept the risk, we will follow your instructions.

4. DIY isn't always better – I often have clients who want to keep the costs down by carrying out an element of the work themselves. I am almost always happy to accommodate this. However litigation is complicated. The court system is complex, and there are a number of formalities that need to be respected. Quite often when people DIY elements of their case, it takes longer to review and correct it before submitting into court then it would have been to prepare it myself. It is always worth having a chat with your solicitor about what you can and cannot do, and be completely transparent about your experience dealing with the court system when having these conversations. If you are an experienced litigator, and have had a number of cases before, you are inevitably going to get much closer to the final necessary product than if you are a complete novice.

5. Provide your instructions clearly – the more clear and succinct you can be in providing information to your solicitor, the more of their time you will save.  As most solicitors deal with claims on an hourly rate, time literally equals money. For example, your solicitor will often send you a written list of questions required to prepare your witnesses statement.  If you don’t answer these questions, or only answer some, or your answers are unclear, more time will be incurred asking you to clarify.  You can’t always provide all of the information, but the clearer you can be, the better.

6. Be organised - one of the best things you can do to help keep your costs down is to provide your instructions and documents in a prompt and organised manner. This does not require any litigation experience or special skills. If you can provide us with your documents in date order and clearly labelled, this is something that we then don't have to do. It helps us find things easily and quickly, and identify what it is that we are looking at. That in itself can save a huge amount of time. If you respond promptly to our communications, that saves the time and costs of us having to chase or remind you. I once had a case where the client delivered their disclosure in approximately 40 bankers’ boxes of documents. None of it was filed, none of it was in order, there were a considerable number of duplicates, and there was a lot of documentation that was not relevant to the case. The client was surprised when this took me almost 2 weeks to go through, spending long days reviewing each and every document, assessing its relevance to the claim, putting it in date order, and producing a list of documents. The list of documents in the end ran only to about 6 or 7 pages. A client might be surprised that a 6 or 7 page document could take almost 2 weeks to produce, but had they read through the documents themselves first, a huge amount of that time and cost could have been avoided.

7. Speak to your solicitor - if costs are a concern, you need to be open with your solicitor from the start. A good solicitor should always give you a realistic idea of how much a litigation claim is going to cost right at the outset. They should talk through with you best and worst case scenarios, and prepare you for the potential realistic cost. You also need to consider the prospect of costs recovery. If you have a claim that you go on to win, with a legal bill of over £100,000 (unfortunately, not uncommon) you need to consider whether the other side has the means to pay this. You might get an order at the end of the day saying that you have won your case, and that the other side owes you back your costs,. Your best case there is that you will recover between 60% and 90% of those costs (never 100%, that’s just how the system works). The worst case scenario is that the other side simply doesn't have the money to pay it, and they may even go bankrupt. This means you may end up recovering a very small proportion of your costs, or perhaps nothing at all and having incurred additional costs dealing with that situation as well. It is important to bear all of the things in mind before embarking on litigation.

8. Mediate, mediate, mediate - the very best thing you can do to keep your costs down is to settle claims at the earliest possible stage. In my experience, one of the most effective forms of alternative dispute resolution is mediation. Sometimes when I tell clients the costs of mediation (usually between £3000 and £6000, depending on the type of claim and the numbers of parties involved) they baulk at the cost. I appreciate that this is a huge amount of money. However when compare to the potential £100,000 or more to trial, it is a worthwhile investment. If you can invest £3000- £6000 in mediation at a very early stage of your claim and get it settled, you'll save yourself a huge amount of time and costs ongoing. Mediation also has a number of benefits over litigating to trial, which are discussed in this blog.                                                        

In summary, and without wishing to hammer the point home too hard, litigation is expensive. However there are things that you can do in order to keep those costs down as well as things your lawyers can do to help you keep the costs down. Having these discussions with solicitors at an early stage and having a realistic idea of what the litigation is likely to cost you can really help to focus the mind on the type of conduct which is appropriate in litigation, and which will ultimately only help to save your costs.

Should you wish to discuss any dispute please contact Toby Walker by email or on 01494 893512.