"skym" wrote in message
oups.com...
I have no strong philosophical dispute with
"loser pays" but I am generally against it based on my experience as a
litigator for over 30 years. The problem is that identified by Jose,
i.e. it really gives a huge, unfair advantage to large corporations or
well heeled clients over the little guy. Having litigated hundreds of
cases in my career, I can tell you that the well heeled clients can,
and do, overlitigate cases in an effort to wear down the other side.

It all depends on the way this is managed. Litigators have very little
reason to manage costs if each side pays their own way. This is just
another way of trying to shake someone down.
Why should a winning defendant is a case have to pay his legal fees when
they have had a case against them tossed out.

One of the jobs of the lawyer is to ensure their client does not get to
court, with court being a last resort. Here in the UK the judge will assess
all aspects of each parties conduct in his determination of costs. If he
thinks a party has unreasonably held out settling he may not award all their
costs in their favour, but only make a partial award.
Likewise if a corporation with loads of resources acts in such a way as to
try and exhaust a claimants resources to pressurise then into dropping their
case, the judge will intervene too.

Libel is a good example. A few years ago a popular soap TV star claimed he
was libelled by a newspaper. Right up to the hearing the newspaper offered a
settlement of £200,000 plus his costs to avoid the case going before a judge
and jury.

As it was the TV star refused the offer, the jury said he had been libelled
and awarded him £50,000 damages. They did not know what had been offered
previously by the paper.

As a result of that, the TV star had to pay his own costs and the trial
costs of the newspaper which came to about £200,000. So he was well out of
pocket for chancing his arm.

so whilst we have a general principle that loser pays all the costs, if a
settlement was offered before the trial which was better than the trial
outcome then the winner who turned down the offer cops the costs for the
waste of time.

Hence the lawyers job is best done when he prevents his clients as far as
possible going to court.

The public here anyway are fed up with the compensation culture with people
looking to blame everybody but themselves and are not particularly tolerant
of this type of behaviour. Hence it is normally better to settle than go
before a jury.