UK Law and Practice Contributed by: Alex Cook, Helix Law
6. Interim Remedies 6.1 Availability of Interim Relief
These funding models are referred to as “conditional fee agreements” (where a success fee is payable if a win is obtained, to compensate for the sharing of risk), and “damages-based agreements” (where the amount paid is expressed as a percentage of the amount being claimed – no win, no fee). Many firms do not offer these forms of alternative funding. Costs may be assessed by the court if disputed. 5.2 Third-Party Funding Third-party funding is available in England and Wales; however, recent litigation has made this less straight- forward. 5.3 Contingency Fee Arrangement In England and Wales, contingency fee arrangements are permitted in the form of damages-based agree- ments (DBAs). Under a DBA, a lawyer is paid a per- centage of the damages recovered if the claim suc- ceeds, and nothing if it fails. Conditional fee agreements (CFAs) (“no win, no fee”) are also available to fund commercial disputes, espe- cially from focused teams in significant matters. 5.4 Insurance Litigation insurance is available for litigation, arbitra- tion, and ADR, most commonly in the form of ATE (after-the-event) and BTE (before-the-event) cover. 5.5 Costs The general rule is that the losing party pays some of the winner’s reasonable and proportionate costs sub- ject always to the courts’ discretion. Costs are usually assessed by the court and are usually reduced, often by 1/3 or more. In lower-value disputes, fixed recov- erable costs also apply, where the amount of costs a party can recover varies depending on the complexity and stage reached in the proceedings. 5.6 Assessment of Costs The court considers all the circumstances when awarding costs, starting with who was successful overall, whether conduct has been reasonable, as well as whether the costs incurred are proportionate.
The courts can grant a range of interim relief to pro- tect a party’s position before trial. The most important types include interim injunctions to restrain or require certain conduct, or freezing orders to prevent dissipa- tion of assets. The court may also order interim payments on account of damages, security for costs, and other asset or property preservation measures. These remedies are typically granted where there is urgency or a risk that final relief would otherwise be undermined. Applica- tions of this type are serious, and must carry urgency. Delay alone can be sufficient to defeat an applica- tion for interim relief, and where such an application is made, the relevant tests the court will apply must be considered carefully and applied promptly and in detail. Injunctions can create significant leverage for either party in negotiations, and while this can be advantageous where an application succeeds, it can also be problematic where an application is made but ultimately fails. 6.2 Interim Relief to Support Arbitration and ADR Courts in England and Wales can grant interim relief in support of both arbitration and, in some cases, ADR. The court has statutory powers under the Arbitration Act 1996 to make orders such as injunctions, freezing orders, and orders for the preservation of evidence or assets, particularly where the arbitral tribunal is not yet in place or cannot act effectively. The court does not grant interim relief in support of ADR. If there is need for interim relief, that should be pursued in tandem with any ADR. Obtaining such relief might create important leverage in any resulting ADR negotiations. 6.3 Timing of Applications for Interim Relief Applications for interim relief are generally made early in proceedings, often before or shortly after a claim is issued, where there is sufficient need and urgency.
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