At Healys we understand that you cannot always privately fund your claim and with any case there is an element at risk. However, there are a number of ways we can help to fund your case and share that risk.
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.
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.
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.