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This here is more American retardation on display for the rest of the world to see. Here in the UK we have the English rules on costs, meaning that the losing side in a dispute has to pay the reasonable legal costs of the winning side, where reasonable strongly depends on the size of the dispute. If you're going to file a $10bn claim a proportionate costs budget itself ends up in the nine figures range, meaning you need to put your money where your mouth is on the dispute being one where you're willing to take it to trial and win a substantial proportion of the amount claimed.
If you're just using lawfare to harass others based on flimsy claims worth nowhere near the claimed amount then you get hit with an early Part 36 offer forcing you to either publicly admit that your claim doesn't have anywhere near the amount of value you're saying and then withdraw the claim, or alternatively if you're stubborn I hope you like that public nine figure costs bill for the other side coming your way and costing you orders of magnitude more than the money you won at trial.
A proper costs regime keeps people honest, which is something sorely lacking in the American legal world right now.
Both Europeans and Americans who favor tort reform like to point this out all the time, but I honestly don't think it would have too much of an effect on the current system. Yes, defending litigation is expensive. But so is suing people. You have a frivolous lawsuit you want to file? Good luck finding an attorney to take it on contingency. Even if the attorney can minimize the amount of time spent on the case and only file necessary motions, you're going to need at least one deposition and at least one expert if you expect to win through anything other than early settlement (which is usually at enough of a discount that most plaintiff's attorneys aren't interested), you're already looking at close to ten grand just in costs. Since the attorney has to recoup the costs from somewhere, and doesn't like to work on cases and not get paid, the standard 1/3 contingency isn't going to apply unless the lawyer is reasonably confident that the case will settle for more than it costs to pursue. That means that if you want to file a questionable suit you'd better be prepared to pay your attorney by the hour and front the costs of all the expenses.
When people talk about frivolous lawsuits, they're often talking about lawsuits where they didn't like how much the plaintiff was awarded, like the McDonald's coffee suit. But these aren't frivolous by definition; the plaintiff won, so there wouldn't be any compensation for attorney's fees in any event. Cases like these would actually be more expensive for the defendants, as the plaintiffs could then go to the court with their hours and rates and bills from all the experts and depositions and such and tacked on a few tens of thousands to the verdict that wouldn't go away on appeal.
Further complicating this is that most normal people who get sued will be sued in situations where either auto or homeowner's liability insurance will cover the costs of both the attorney and the settlement, so they aren't directly impacted by any reforms. The same is true of most businesses; if you slip and fall in the Wal-Mart parking lot, the settlement isn't coming out of the corporate checking account except to the extent that it might have an effect on their premiums. The primary beneficiaries of such a system are insurance companies, who absolutely despise having to pay settlements and legal fees. But general liability insurance is already cheap enough that most companies wouldn't see their premiums appreciably lowered by that kind of reform (medical malpractice is the exception, though plaintiff-side claims are expensive enough that there's very little frivolity to be found here). The tradeoff is that normal people will find it even harder to get compensation than it already is, as it just raises the already high bar for how much a case needs to be worth for an attorney to take it. And I say all this as someone who does civil defense work.
The only instance I see where the process can seriously be abused is when wealthy people like Trump use their ability to pay to bully normal people into settling rather than fighting. But this doesn't happen very often, and when it does happen it's usually in a few select areas that can be addressed through more targeted legislation, like anti-SLAPP statutes. I wouldn't even be opposed to a wider procedural change that required you to show evidence that a case wasn't frivolous, or gave defendants a mechanism to require such a showing, and to award attorney's fees if evidence is lacking. But it's probably better to leave this for specific situations, since it most cases it would simply be a waste of time.
Or when the government bullies pretty much anyone.
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That's completely wrong, isn't it? In the UK, the loser pays the costs of the winner. It's very very rare to pay the costs of the winner unless their behaviour is incredibly egregious.
Sry, my bad, I got it the wrong way around. Rest of my comment only makes sense if you take it to mean the right way around. Busy day...
Winning side paying the costs of the losing side would be a recipe for disaster as it would allow people to harass others via lawfare for free, as opposed to having to pay their own legal costs as they have to do right now in the US at least.
Of course, I was just surprised and wanted to check in case I was totally misinformed.
Incidentally, there are some cases where the loser doesn't have to pay costs, the most egregious of which is that if you are supported by public aid (mostly immigrants being supported by legal charities) you're theoretically poor and you don't have to pay even if a) you cause the other party to pay millions in damages or costs and b) your sponsors are rolling.
The UK's loser-pays-winner paradigm isn't perfect. My family were put off pursuing a perfectly-winnable claim because we had a 95% chance of winning but we would bankrupt ourselves trying to pay for the other side's top-tier legal team on the 5% chance we lost.
Losers pays without strict boundaries can of course be very bad too if the one paying the bill has deep pockets. It’s a recipe for the winning side to run of their lawyer tab for frivolous things. JPMorgan was the victim in a fraud of a start-up they bought but ended up having to pay the other sides legal bills as they had become an employee.
https://www.pymnts.com/legal/2025/jpmorgan-fights-paying-unconscionable-legal-fees-for-frank-founder/
It can be bad for 50-50 cases. Like think of Chevron and Exxon suing each other. The winning side could end up working out a deal where they inflate their bills in the win in exchange for lightly billing on other work etc.
The JPMorgan case is probably the extreme of extremes.
And of course long shot cases like the Tobacco lawsuits would have been tough to bring. Especially if you required deposits to bring a case if the one suing is judgement proof because they are a poor smoker dying.
That's why the recoverable costs are based on what's "reasonable" (decided by a judge at an early stage of the proceedings) rather than everything. What usually happens for serious cases is that you have a CCMC (Costs and Case Management Conference) before a High Court Master (like a judge but specializes in costs law) where both sides argue for how much each stage of the litigation is likely to cost them and what would be a reasonable spend and you get a chance to challenge what the other side says is reasonable. After that is done the total amount recoverable from the losing side is limited by this number for each of the stages (unless one party acts absolutely egregiously during the case in which case indemnity costs are available). Not to mention that for small claims under £100k in value we now have Fixed Recoverable Costs following the Jackson reforms meaning you can right now go online and find the table which would in 15 minutes allow you to calculate what your costs budget would be for e.g. if someone decided to sue you over £75k.
There's plenty of case law around these CMCs for what's been accepted in other similar cases so while you can run up the lawyer tab all you want the actual amount recovered if you win will still be sensible (usually this corresponds to around 70-80% of the costs incurred in a typical case, 100% recovery is actually quite rare, and of course if you start spending your money on frivolous legal things not covered by the budget there's no recovery for you even if you win, no Costs Master is going to allocate any spending for "gummy bears" and if he did it would be an easy appeal on the grounds of perversity). However this 70-80% recovery is still enough to discourage claim values which are out of all proportion to the total amount of harm the claimant has suffered because 70-80% of a nine figure sum is still massive.
How, pray tell, does Trump intend to demonstrate that the leak of his tax returns has caused him $10 billion worth of damage when his net worth is nowhere near that amount? He might have had a better loss of a chance claim had he lost the election but given that he won it that means in the UK I'd be very surprised if he was able to win more than a few hundred thousand pounds for this claim, even if everything is as he says it is. In the UK making such unfounded statements is itself seen as unreasonable behavior and no barrister would even be willing to make the argument that he suffered an eleven figure loss because it would go against their professional duties to the court.
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Fair enough, but that's why you have things like After The Event (ATE) insurance. If you have a perfectly winnable claim it shouldn't be that hard to get ATE insurance covering you if you lose in return for them taking like 10% of your winnings if you win. Plus even if you lose the judge retains discretion to not award costs or award reduced costs if it's not just and equitable to force you to pay (as often happens for many immigration cases when the claimant loses their claim for Judicial Review because they didn't like their visa getting denied etc. but the judge didn't agree with them).
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