13 Things You Need To Know About “No Win, No Fee” Agreements.
The correct name for a “No Win, No Fee” agreement is a Conditional Fee Agreement (“CFA”). The term ‘no win no fee agreements’ is a clever marketing phrase that is designed to appeal to members of the general public by falsely simplifying what a Conditional Fee Agreement is.
If you want to claim a small amount of damages arising from what solicitors call “tripping and slipping claims”; falling over raised paving stones and similar incidents, CFA’s are simple and easy. If your case is more complicated, CFA’s are not so simple or so easy.
To find a solicitor who will provide you with a CFA, you will need to have a case that has a “good” chance of success. That is, a professional legal opinion that you have a better than a 50% or possibly 60% chance of success.
In all but the simplest of cases a certain amount of work will be required to establish whether or not your claim is likely to succeed. Who bears the cost of this initial assessment work should be agreed with your solicitor in advance.
You may want to consider taking out an “After The Event” insurance policy to cover payment of the other side’s costs should your case not succeed. (There are NO guarantees in litigation.) A solicitor may require that you take out a similar insurance policy to cover payment of his fees. These policies require substantial premiums to be paid. Sometimes insurers will agree to defer payment of the premium to the end of the case. However, the cost of the premium cannot be recovered from the other side even if you are successful.
To obtain an After The Event insurance policy you will need an opinion from a barrister. Again, how the barrister is to be paid needs to be agreed in advance.
If you have:
A case your solicitor has determined has a good chance of success.
A written opinion from a barrister to support this view.
An After The Event insurance policy in place.
You will still need to agree the terms of your CFA with your solicitor. A solicitor can and may agree to defer the payment of all of his costs until the after the end of the case or he may agree to defer only part of his costs. This needs to be clarified with your solicitor before any work commences.
Your solicitor will also need to find a barrister who will agree to act under a CFA. If he is unable to, you will have to pay the barrister’s fees as the case progresses.
If you need evidence from experts such as surveyors or accountants to support your case, they are often unwilling to defer payment of their fees. If this is the case, these fees will have to be paid as the case progresses.
Under a CFA as the financial risk is being borne by the solicitor and/or insurance company, if an offer to settle comes in from the other side it is they and not you who will decide whether or not to accept that offer.
The solicitor can charge a success fee of up to 100% of his fees. This has to be paid by you. If the court is aware that you are being represented under the terms of a CFA, you can claim a 10% increase in the damages awarded to you, but whether or not a CFA makes monetary sense for you should be established as early as possible.
Litigation can be time consuming and emotionally very difficult, this is not changed by a CFA.
CFAs can provide a way for you to pursue a legitimate action and get the justice you deserve if you do not have the financial resources usually required to do so. It is important to instruct a committed solicitor who is willing to share the risk of your case with you.
Christopher Burgon Limited is always open to running cases on a CFA basis and would be happy to discuss this with you.