Costs budgeting simply doesn’t work, say Charles Auld & Kate Harrington
All civil litigation incurs cost; this may be sums paid to lawyers to conduct that litigation; the hours worked by an in-house employee retained specifically for, say, debt collection or the cost of the time spent by a litigant in person. If litigants cannot recover their costs from other parties this can have undesirable results. A claimant can pursue a completely unmeritorious claim with a view to persuading the defendant that it would be cheaper to pay him something in settlement than take the matter to trial. Perhaps of more significance, a no-costs system can prevent a claimant who has a good claim for a non-financial remedy, eg possession of land, but who is impecunious, from pursuing his action at all.
Successful litigants in England and Wales are, at least prima facie, entitled to recover their legal costs from the unsuccessful party, but there is a limit on what can be recovered. As Victorian judge Sir James Wilde put it, a litigant can recover
