Conditional Fee Agreements in Clinical Negligence Claims (“No Win No Fee”)
A Conditional Fee Agreement (CFA) is a method of funding your case in which:
- We do not charge you if you lose your case
- If we succeed with your case we are entitled to charge a "success fee" in return for us taking the risk of not being paid. This is explained further below
- Your opponent would normally be ordered to pay all or most of your fees (including success fee) in the event of your winning the case
- We would usually agree with you prior to your entering into the Agreement to limit our fees to the amount recovered from your opponent
- All of the above means that you will generally be "ring-fenced" from having to pay legal fees, win or lose. There are some exceptions to this such as if a claim fails because a client has deliberately provided false information about their claim or alternatively if the client decides to withdraw or change Solicitor midway through the case, leaving us in a position whereby we are unable to recover our costs from your opponent.
Do I have to pay anything if I win?
Under the terms of the CFA you are responsible for paying our fees if you win. You will usually be able to claim back most of our fees and the expenses you have paid from your opponent and we will deal with this for you. Your opponent will probably not have to pay all of the costs. This is because there are often costs that it is reasonable for us to charge you, which the law says you cannot claim back from your opponent. For example:
- If we obtain a medical report which does not support your case and therefore do not disclose it to the other side or rely on it to prove your case
- If we correspond with or obtain a statement from a potential witness whose evidence turns out not to support the case and we decide not to use that evidence
- If the claim is based on several specific allegations and some of those succeed but others do not
- Certain costs in relation to funding
We will usually be able to agree with the other side what costs they have to pay. If this is not possible the costs will be assessed by the Court, which will decide how much the opponent has to pay and how much you have to pay. If you have taken out an insurance policy (see below) the opponent will also have to pay the insurance premium at the end of the case.
The CFA will provide for you to pay a success fee if you win. The success fee is calculated as a percentage of our fees. The exact percentage will depend on the nature of the case. There are two elements that we take into account when deciding what percentage we will charge:
- How risky we think the case is (because if you lose, we do not get paid) and;
- How long we think the case will last (because we will not get paid until the end of the case if you do win) and whether we have agreed to pay any of the expenses.
Part (a) is usually the larger of the percentage charged. Your opponent is responsible for paying this part. Part (b) is usually between 5% and 10%. You are responsible for paying this part and you cannot claim it back from your opponent. The success fee is calculated as a percentage of our fees, not as a percentage of your damages. The maximum that the law allows us to charge is an additional 100% of our fees.
During the case there will be expenses, which usually have to be paid as they arise. These include the charges of medical experts and other expert witnesses for preparing reports and attending meetings, charges for obtaining copies of medical records and x-rays, Court fees and Barrister's fees. Barristers are sometimes, but not always, prepared to enter into a CFA as well. These expenses may be paid by you or we may agree to fund them for you.
What happens if I lose?
If you lose, or if we both agree not to pursue the case further, you will not have to pay our fees, but you will still have to pay the expenses. You may also have to pay the other side's Solicitors fees and expenses.
Insurance policies are available to protect you against this risk. Under these policies the insurer will usually pay your expenses and your opponent's Solicitors fees and expenses if you lose or if the Insurer has agreed to the claim being dropped. There are a limited number of insurance companies that provide insurance in clinical negligence work because of the complex nature of the work. We are however on the panel of two of the major After the Event Insurers and are able to insure your case with others. The advantage of this is that we can often obtain insurance cover without the need for the insurance company to consider the circumstances of your case. This is because they are able to rely on expertise in assessing the case for insurance purposes. The other benefits are that we are able to obtain policies in which the premiums (the cost of the policy) are deferred and not due to be paid until the end of the case and are also insured so that if you win, the premium is not payable until you have recovered damages (you can then claim the cost of it back from the opponent) and if you lose you will not have to pay the premium at all. If we are of the view that your case has reasonable prospects of success, we are able to insure you from the outset which means that you will be protected against liability for the other side's costs and your own expenses from the start of your case.
Proceeding Under a CFA
Please note that the above is merely a guide and not a complete and full description of how a CFA works. If after we discuss your case with you, we agree to proceed under a CFA, we shall provide you with a full and complete explanation of the Agreement to enable you to decide whether or not you wish to proceed.