The broad idea about recovery of the costs of litigation is that the so-called “English Rule” allows a successful party to recover his costs from the loser, whereas the costs of US litigation lie where they fall. It is not as simple as that – but this post is not an attempt to unravel the subject.

There is some doubt as to the extent to which a successful party to UK litigation will get back the costs, however reasonably incurred, in using external help to handle disclosure. There is little doubt that he should, it is just that evidence of actual outcomes is hard to find – the question came up at a recent meeting of the London Solicitors Litigation Association where no-one present had experience one way or the other.

Meanwhile, Lord Justice Jackson’s recommendations, if accepted, will redefine recoverability – a subject with potentially profound effects which I hope to come back to.

What prompts this post is an article about costs recovery in US litigation on the Practical eDiscovery site. Called Court broadly allows a prevailing party to recover its ediscovery costs under 28 U.S.C. §1920, it concerns a case in which the successful party claimed $243,453.02 paid to an ediscovery vendor that collected, searched, identified and helped to produce electronic documents from the defendant’s network files and hard drives in response to the plaintiff’s discovery requests.

I imagine that one of the points at issue is that U.S.C §1920 pre-dates the concepts arising in electronic discovery and its wording does not obviously apply to them.

The point raised at the LSLA meeting, the Jackson sections on the basis of assessment and now this US case make the subject worth some study. Putting the article here is really just a way of filing it so that I can find it again, but it will be of interest anyway on both sides of the Atlantic.

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