When making a judicial determination on the allocation of litigation costs, two decisions fall to the deciding judge under Civil Procedure Rule (CPR) 44.2: establishing which of the litigating parties is the «winner», and applying judicial discretion to determine any discounts or changes to awarded costs necessary to
reflect elements of the case.
It is true, as Hall points out, that for Whitehead ordering principles are «immanent» within particular occasions (see UP 261 - 70), but in most
cases those ordering principles also
reflect the «mutual relations»
of individuals, as well as the «community in character» pervading groups or societies
of individuals (AI 142).13 This is particularly true
of persons: the relations between occasions which constitute the human body and brain, and the «community
of character»
of the succession
of personal experiences, give an essential
element of unity to human experience.
There is a strong
case for arbitral institutions to recognise and
reflect on the public policy issues that lay behind the exclusion
of all funding
elements from costs awards in civil litigation.