Funding your claim

Risk Sharing

• Conditional fees (No Win No Fee) – In this type of arrangement if you lose your case, your lawyer will make no charge in respect of profit costs, but you will have     to pay your own disbursements and your opponent’s legal costs.  If you win, your lawyer is entitled to charge a success fee on top of the normal hourly rate. Your opponent will not be ordered to pay any part of the success fee but rather it will be paid out of any damages awarded in the case. Please note that it is not obligatory to charge a success fee. We will seek not to do so but it will depend upon the merits of your case.
• Hybrid Conditional fees – In this type of arrangement, a proportion of the work carried out (e.g. 50% will be charged in accordance with our usual retainer terms) i.e. paid on an hourly basis and at the end of each month, and the balance will be subject to conditional fees (i.e. only charged if you win). This is becoming an increasingly popular arrangement; not least because it requires that there is a sharing of the risk between the client and the firm.
• Contingency fees/damage-based agreements – In this type of agreement, you will again not be charged any profit costs if you lose the case.  If you are successful you will be charged a percentage of that recovered as agreed at the outset but which cannot be more than 50% (25% if a personal injury case) of that recovered.
• Contingent fees – It is also possible to agree that we will charge you on the basis of an hourly rate if your case is won, but that the rate will be reduced if your     case is unsuccessful.

It is important that you understand that, if we do enter into such an arrangement, the definition of success in relation to your case must be agreed and clearly set out.

It is also important for you to appreciate that, prior to any such arrangement being agreed, we may have to carry out a risk assessment exercise to determine whether we are prepared to take your matter on any of the above ‘risk-sharing’ bases.  If so, the risk assessment may be charged at our usual hourly rates and which would need to be paid before any risk sharing arrangement is entered into.  Often, it is only after the risk assessment has taken place that we can we decide whether we are willing to take on the matter on a conditional, contingency or contingent fee arrangement.

We will also be entitled to carry out further risk assessments during the course of the matter and, if any issues arise which affect the prospects of success, we will review whether we are prepared to continue to carry on with the arrangement in place.

Third Party Funding

This is self-explanatory. It includes funding from commercial entities and with which we have connections.  There are, however, issues of which you need to be aware if your matter is funded by a third party.  We will advise you on such issues if relevant to your matter.

Insurance

There are two types of insurance which may be available to fund litigation:

a)    A pre-existing insurance policy (“before the event insurance”)which provides cover for legal expenses.  This can be a policy covering just legal expenses.  It is also, however, now relatively common for legal expenses cover to be included in a standard home or motor insurance policy. However, such policies are frequently limited in what they cover and may include restrictions on your freedom of choice of lawyer.  We recommend that you look at the insurance policies which you have in place to check whether or not legal expenses insurance is included.  We will be happy to advise you on this point if you wish us to do so.  Indeed, if in doubt, we strongly recommend that you let us have a copy of the policy.

b)    Insurance policies which are taken out to provide cover for the cost of litigation after a dispute has arisen (“after the event insurance”).  The premiums for these policies depend on a number of factors, most importantly, the amount of cover required.  These policies can provide protection against the possibility of you having to pay the total costs of litigation in the event that you lose a case.  Insurance cover can be purchased in respect of your opponent’s legal costs, your own disbursements (including Court fees, Counsels’ fees and experts’ fees) and also your own legal costs.  It is usual for these policies only to pay out in the event that you lose your case completely.  In certain circumstances, the payment of the premium can be deferred until the end of the case when it is hoped (but cannot be guaranteed) that you will have the damages from which to make the payment (see below).

It is almost invariably a requirement that, as part of completing the proposal form, a copy of Counsel’s written opinion on the merits of the case is provided.   This will have to be obtained and paid for on the basis set out in our retainer letter.

In considering this type of cover, it is imperative that you ascertain how you will be able to fund the premium.  Although, in the past, it was possible for the Court to order your opponent to repay you this premium if you win your case, this is no longer the case.  If the premium is deferred it will be payable out of your damages.  Alternatively, if not deferred, it will be payable at the outset.

Please note that we are not competent or willing to advise you on all the various insurance products available.  We are lawyers, not insurance advisors.  It is for this reason that we engage a broker (and we have relationships with a number of them) to obtain the best/most suitable products for our clients.

We are members of the Professional Negligence Lawyers Association and our team has developed strong relationships with leading barristers’ chambers who specialise in this type of professional negligence.

For more information regarding Professional Negligence claims, please don’t hesitate to contact our specialist team today.

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