It is important that any person or company seeking to resolve a dispute has sufficient resources to fund the method of resolution chosen, whether the ultimate outcome is favourable or not. A party to a dispute will be liable for the costs they incur unless and until an alternative method of funding is put in place. Even if alternative funding is arranged, it would be very unlikely to cover costs which had by then already been incurred.
Consideration should always be given to the availability and suitability of alternative funding approaches. In particular, the following may be relevant:
Legal expenses insurance (BTE Insurance)
You should consider whether you have the benefit of any legal expenses insurance that might cover your costs. Such cover can sometimes be included within other insurance policies, for example home or car insurance.
You should check any relevant insurance policies you hold and satisfy yourself of the position. This should be done as soon as possible.
Alternatively, we would be happy to assist you by reviewing any relevant policies, but we would of course charge for our time in doing so. Many policies have time limits for notifications to be sent to insurers or may impose restrictions, such as which solicitor may act for you. Checking at the earliest opportunity could avoid unnecessary or irrecoverable costs. Depending on the restrictions in the policy we may decline to continue to act.
After the event insurance (ATE insurance)
You should consider whether you wish to obtain ATE insurance. This is insurance taken out after a dispute has arisen. ATE insurance is usually taken out to protect against the risk of having to pay the other side’s costs if you are unsuccessful in litigation.
There are a number of insurers and organisations providing ATE insurance. If you require our assistance in applying for ATE insurance, you will of course be responsible for our costs in assisting. Depending on the restrictions in the policy, we may decline to act.
Conditional fee agreements (CFAs)
A CFA is an agreement by which you will pay different amounts for the legal services you receive depending on the outcome of your case.
If your case is successful, you will be liable to pay all fees and expenses, including any success fee, provided for in the CFA. A success fee is an additional amount payable for the legal services you receive. It is calculated as an additional percentage of the base costs. Conversely, if your case is unsuccessful, you will generally not be liable to pay our fees but may still have to pay expenses such as counsel’s fees. This is why CFA’s are often called 'no win, no fee' agreements.
If your claim is successful, the majority of your costs (i.e. legal fees and related expenses) may be recoverable from the unsuccessful party.
It is also important to bear in mind that you will remain primarily liable for this firm’s fees (and expenses) if you are successful. Accordingly, if you are unable to recover your costs from the other side, you will remain responsible for paying for fees.
A client who entered into a CFA on or after 1 April 2013 will not be able to recover any of the success fee from another party to the dispute, and in most cases it will have to be paid by the successful client.
In some cases we are able to consider acting under a CFA. If you wish this to be considered you should raise the matter with us. In order to consider whether we would be able to act under a CFA it would be necessary for you to fund the initial investigation of your claim, which might include obtaining a specialist barrister's opinion. A report would then be made to our internal CFA Panel with a recommendation. If the CFA Panel agrees that a CFA may be entered into, there are various requirements in terms of advice and information which would need to be met before the agreement could be finalised. It may be appropriate for you to obtain ATE insurance in conjunction with a CFA. This is because even if a CFA is entered you would usually remain liable for disbursements incurred on your behalf and adverse costs if you were unsuccessful.
Damages-based agreements (DBAs)
A DBA is a form of alternative funding, often referred to as a 'contingency fee' agreement, by which this firm’s fees would only paid if you obtained a specified financial benefit (e.g. you are awarded compensation by a court and successfully recover that compensation). The amount we would receive is calculated as a percentage of the financial benefit you receive. There is a cap on the percentage that could be sought from you.
Currently, we do not offer DBAs as a form of litigation funding, however, the position is subject to ongoing review. If the position changes and it is appropriate and/or necessary to advise you of this, we will do so.
Third party funding (TPF)
TPF is an arrangement whereby someone with no prior connection to the dispute, agrees to finance all or part of the legal costs in return for a fee payable from the proceeds recovered by you. TPF can be used in conjunction with other funding options, such as CFAs, DBAs and ATE insurance.
There are a number of specialist third party funding companies. Whether a funding company will agree to fund your case will depend on its own commercial assessment of the value and prospects of success of your case. In many cases, a third party funder will require its own lawyer to give an independent assessment of a case before agreeing to provide funding. This is because the funder’s return is tied to the success of the case. Where it is appropriate, we can assist you with an application for TPF. You will of course be responsible for our costs in assisting.
If you would like more information on TFP and some of the funders that operate in the UK, please visit the Association of Litigation Funders.
Public funding (legal aid)
We do not have a contract for publicly funded work in general civil litigation. Public funding is means tested. If you think there is a possibility that you may qualify, you should contact the Legal Aid Agency on 0300 200 2020 who will be able to advise you. You may obtain further information from the Legal Services website . If public funding is available to you, you would need to instruct other solicitors able to act on that basis. If your financial position changes at any time it may be possible to obtain public funding because you then qualify. You should therefore keep the position under review even if you do not qualify at present.