Legal costs of any dispute can soon outweigh the issue that people argue about; Lawyers are supposed to know this but time and again I see lawyers with such large costs that a party simply cannot face the costs of settling. The thrust of relieving the courts of the workload of hearings is to encourage disputing parties to try and settle at Mediation [ADR] but again this in itself creates costs and sometimes makes the matter harder to settle. The case of PGF II SA v OMFS Company 1 Limited  EWCA Civ 1288 has been reported in the Law Gazette where they say this case “...has given its strongest support for alternative dispute resolution since its decision in Halsey v Milton Keynes General NHS Trust  1 WLR 3002. More significantly the case considered, for the first time as a matter of principle, the following question: what should be the response of the court to a party which, when invited by its opponent to take part in ADR, simply declines to respond to the invitation in any way?” in my opinion, the directions from this case are just worse than the understanding before.
No wonder people are confused; the courts do not give any real indication of what a party can rely on when it comes to the costs; conduct of the entire litigation is something that directs the court but each Judge has a discretion to interpret the rules and directions from the higher courts their own way which, leads to uncertainty for lawyers when dealing with different judges and different courts.
The answer is to be sure your lawyer has a grip on the rules and what the costs ought to be for each case, don’t just let your lawyer move forward on his own initiative; ask your lawyer to set out what the costs are for each phase and what he thinks the other sides costs will be and of course your lawyer can write to the other side and ask what their costs are to that time so there are no surprises for you when it comes to ADR.
Of course the case might not settle at ADR but you can then demonstrate to the judge at the final hearing that costs were an issue that you chose to keep under control and therefore your conduct of the litigation can be shown to be reasonable, provided your own costs are under control, whether you win or lose the case at that dreadful final hearing.
In summary it is my opinion that you should not leave the matter of costs in any case to the judge in isolation, you should make it an issue before the litigation starts and control it throughout.