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Q. Are lawyers able to enter into contingency/ damages sharing agreements with clients?
No. These are prohibited by the Barristers’ Code of Professional Conduct 1981, Rule 96. The Bar Council has proposed allowing conditional/contingent fee structures however no steps have been taken to do so thus far.
Q. Recoverability of client costs and/or success fees? As a general rule costs follow the event i.e. loser pays. Success fees are not recoverable.
As a general rule costs follow the event i.e. loser pays. Success fees are not recoverable.
Q. Can a Defendant obtain an order for security for costs?
Yes. The Court may order security for costs where it appears to the Court that: (1) The plaintiff resides abroad; (2) The plaintiff is suing in a nominal capacity on behalf of someone else and may not be able to satisfy an order for costs; or (3) The plaintiff has changed address with a view to evading the consequences of the litigation, or the address in the Writ is incorrect. Such security can in theory be dealt with by obtaining an insurance policy/ third party funder indemnity.
Q. How active is the Court costs management? Are cost budgets required?
Not at all. Cost protection orders are available in limited cases of public interest, where the party has no financial interest in the outcome of the case and would otherwise not bring the case if they were to be exposed to costs orders.
Q. Is Third Party Funding of disputes available?
Yes, for both litigation and arbitration, Claimants and Defendants. However, such funding arrangements are presently uncommon with no developed or developing market for third party funders.
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2019 Global Survey on the Commercialisation of Disputes – Bermuda
This article was first published by Brown Rudnick.