1 Conditional Fee Agreements Guidance Notes What is it all about? General Instructions When Meeting Clients In the vast majority of cases, the reason for visiting a client will be to obtain written instructions from them, to their solicitor, so that their solicitor can proceed with a claim for damages on the client's behalf. The purpose of this paperwork is to ensure that at the successful conclusion of the claim, the solicitor is able to get paid for the work done on the claim. We may also be required to obtain evidence to help with the claim, such as a statement, photographs of client s injuries, or the accident locus. Why Do We Need to Do This? Invariably the solicitor's office will be far enough from the client to make a home visit by them impractical. Why is a Face to Face Meeting Necessary? In order to comply with the relevant legislation, the form the paperwork has to take is not exactly "user friendly". Therefore it is in both the client's and the solicitor's interests that the paperwork is explained to the client in person. Furthermore part of the procedure includes the client receiving "oral advice". This can be done over the phone, but is far more satisfactory when delivered personally. So What is the Background to All This? Personal injury claims used to qualify for Legal Aid. Tony Blair s government decided that withdrawing this benefit would help to contain the spiralling cost of Legal Aid Of course not everyone used to qualify for Legal Aid, but in practise solicitors have speculated their costs in sure fire, winnable cases for years. This however was not strictly proper. It was replaced in the Access to Justice Act 1999, by the Conditional Fee Agreement (CFA), commonly known as "no win - no fee." This system meant in practise that, provided claimants were honest and behaved reasonably, pursuing a claim could be done with no risk of it costing them anything, whether they won or lost. Understandably this proved hugely successful as access to justice was opened up not only to the very rich and the very poor, but to the rest of us in the middle as well. David Cameron s government decided that this needed changing (please don t get me started!) and so on the 1 st April 2013 some key changes that were included in the LASPO Bill were implemented. Most notable amongst these as far as we agents are concerned is that clients can now expect to pay their solicitors 25% of their damages and the cost of an After the Event insurance (ATE) policy if they opt for one. Again assuming client honesty, they are not presented with a bill if they lose, so claims can be made with no risk of ending up worse off. For claimants this is a much worse system than before, however their reaction has been quietly positive, as most thought they would end up with a bill with the previous scheme. At least this one gives them the comfort of knowing the limit of the charges involved at the outset.
2 Why is the Paperwork Off-putting to Clients? No win no fee does not mean free. Someone has to pay and that should be in the most part the defendant, or in reality their insurer. The CFA scheme has to fit in with existing legislation regarding the claiming of costs. This means that the client has to be contractually bound to pay all of their solicitor s costs, in order for them to be legitimately claimed from the other side. So when the paperwork refers to this, clients sometimes worry that there will be a larger bill than they were expecting. This technical liability for the whole costs puts the client effectively into a potential position of loss if the insurers were not pay their proportion of the claimant solicitor s costs. Looked at another way, if the client had no obligation to their solicitor and the defence did not pay their proportion of the costs, the client would be OK, but the solicitor would have worked for nothing. Clearly this would be unsustainable. This concept is known as the Indemnity Principle and understanding it is the key to being able to reassure an anxious client, who thinks the paperwork contradicts the idea of no win - no fee. The regulations require that the client is aware of exactly what their liability to their solicitor is, before instructing them. This is why we need you to be there, to provide the correct advice to them. Points on Costs 1) In a successful claim for damages arising out of someone's negligence, the reasonable costs of conducting the claim are met by the defendant, or in reality their insurer. Since LASPO these do not include the solicitor s success fee, or the cost of any ATE policy. 2) The full costs of the case are made up of the: claimant's solicitor's costs the defendant's solicitor's costs disbursements Disbursements are costs incurred by the claimant s solicitors arising from payments to outside bodies. e.g. court fees, medical consultants, obtaining medical records, police reports, barristers, or expert witnesses. 3) The hourly rates you see quoted by solicitors to clients are arrived at as a result of noting the amounts awarded by courts in their area, for this kind of work. Clients may be surprised by the amount, but they are absolutely standard within the profession. If the question is raised, it helps to point out that the person dealing with the claim does not receive the entire hourly rate. This is simply the time honoured way that firms of solicitors use to calculate the cost of providing their services, and includes the cost of premises, office equipment, secretarial support, stationery, telephones, insurance etc. If you can imagine Ford saying that the cost of a Mondeo, instead of being 20,000, was 100 man hours at 200 per hour, no would think that the men on the assembly line were paid 200 an hour (or we would all be working there!). 4) In 2011 a streamlined system was set up to handle straightforward Road Traffic Accident claims with damages of less than 10,000. This is known as the RTA Portal and is simply a computer based mechanism by which accident solicitors and motor insurers can communicate in a standardised way. The
3 solicitors are paid fixed amounts at various stages of the claim, rather than billing at the end for the number of hours spent on the matter. The scope of the portal is being extended in July 2013 to include higher value RTAs, accidents at work and slip/trips. This mean that in the vast majority of cases we are involved in the hourly rate will not apply and the solicitors will receive much lower fixed fees from the defendants. 5) The claimant has usually only to establish 1% negligence on the part of the defendant, in order for their costs to be paid by the defendant's insurers. 6) Bear in mind that solicitors who we work with do not charge clients over and above the 25% success fee, unless they have very good reason. e.g. they have been misled about the circumstances, the client fails to follow reasonable advice, or abandons the claim before its conclusion, thus preventing the solicitor from being able to claim his costs incurred to that stage. 7) If a client asks why they have to pay the solicitor s success fee the explanation is that the law provides for basic costs to be paid by the defence and, if the case succeeds, an element related to the size of the award by them. If it helps it may be worth pointing out that this encourages their solicitor to get them as much as possible as they gain from that success as well. How do I Explain this Concisely to the Client? Clients want to know what the process will cost them. If they win they will pay their solicitors 25% of the damages awarded (not including any amount intended for future care) the cost of the ATE if purchased If they lose they will pay nothing there is no fee from their solicitor the defence solicitors absorbs their own costs, provided the client has not claimed fraudulently the ATE policy will pay the disbursements. Having clarified the above two outcomes, the minimum you need to explain to the client from the agreement is contained in the five sections below. This procedure has been tested in court in the case of Samonini v London General Transport. The questions and answers to cover are: a) The circumstances in which you may be liable to pay our disbursements and charges; If the client supplied solicitors with misleading information. If the client choose not to pursue the case after solicitors have incurred legal time and costs in assisting them.
4 If the client failed to notify solicitors of a change of address or fail to reply to requests for information within a reasonable time. Circumstances or the evidence subsequently appears different to the information that the client provided to solicitors. If the client chooses to ignore or refuse a recommendation by solicitors particularly with regards to an offer to settle or generally go against their advice. If the client withdraws their instructions or if agreement is otherwise brought to an end. b) The circumstances in which you may seek assessment of our charges and disbursements and the procedure for doing so; Only applies if a) occurs. If this occurs solicitors will forward to the client an invoice of their charges and attached to it is a procedure for any challenge to the invoice which they may choose to make. c) Whether we consider that your risk of becoming liable for any costs in these proceedings is insured under an existing contract of insurance; You will have completed some form of Legal Expense Insurance checklist to see if they have existing cover d) Other methods of financing those costs, including private funding, Community Legal Service funding, legal expenses insurance, trade union funding; These should have been covered by their solicitor when they spoke on the phone, or again checked by you to complete the solicitor s paperwork e) In all the circumstances, on the information currently available to us, we believe that a contract of insurance is necessary at this stage of your claim. So What Else Is There? The view is that all litigation contains risk that is impossible to foresee at the outset, so it is better to be safe from the beginning and provide the client with cover in case they are required to pay the defence costs and disbursements. CFA's are only one of the remedies available to injured parties who want assistance to pursue claims. Other avenues available are: Paying the costs themselves Legal Expenses Insurance Funding from Trade Unions, or similar Community Legal Service Funding Damage Based Agreements (DBA) The Solicitor must consider the other options at the time of entering into a Conditional Fee Agreement. There is no advantage to the client paying the costs themselves rather than going no win - no fee. Under the LASPO conditions the approach to Legal Expenses Insurance has completely changed for two important reasons. Firstly a recent Court of Appeal
5 judgement has made it easier for claimants to nominate their own solicitors from the outset and secondly as the cost of ATE has to be paid by the client (or with some firms their solicitors) it is preferable to use existing insurance than pay for another policy. As a result of this watch out for the price of LEI to go into orbit. Trade Union funding is less common these days as their membership declines and we don t see many of these, as where it is applicable, the union have normally picked the client up themselves. Community Legal Service Funding is only available under exceptional circumstances and we would be advised if that is remotely possible for any given client. DBAs don t work for solicitors unless the client s award will be enormous, in which case we are unlikely to be involved, as they would see the clients themselves! They may be relevant for Claims Management Companies (CMCs), watch this space. How Does This Affect Us? In the past getting LEI information from clients was just about the most contentious part of the home meeting. Now if clients don t want to provide this that s fine, but it means their options are limited to buying an ATE policy, or running the claim without cover. Which neatly brings us to the point of what benefit does the client get from this cover? Before LASPO the losing side effectively picked up both sides costs and the disbursements. Under LASPO, as a trade off for not being able to recover the ATE premium, the defence now pay their own costs if the claim fails under a system known as Qualified One Way Cost Shifting (or Quocs for short). However Quocs does not apply if the client is judged to have been a) fundamentally dishonest, b) if the claim is struck out for being an abuse of process (which is unthinkable), or c) if they fail to beat a Part 36 offer i.e. an offer by the defence to settle before going to trial. I m told that the main protection afforded by LEI, or ATE insurance in the claims situation now is protection against paying the defence costs if the claim fails to beat a Part 36 offer. If this happens the amount the defence can claim from the client is limited to the amount of damages awarded. In effect then if they run a case with a Part 36 in place and fail to beat it, they can win, but come out in a cash neutral position. A Part 36 offer is an attempt to settle the claim before trial by one side offering an amount to the other side. If the offer is rejected and the trial goes ahead the judge will be aware there was a rejected Part 36 offer made, but not its value. If the judgement fails to exceed the Part 36 then the claimant is responsible for the other side s costs from the point the offer was made, subject in our cases to the limit mentioned above. In some circumstances the solicitor might recommend to their client that they don t need to have such cover, as the likelihood of it being needed is extremely remote. ATE can be purchased further down the claims track if it looks like being a good option for the client, but it gets more expensive the more likely it is to be claimed upon. That would be a decision needing to be weighed up at the time. The dilemma we are likely to face is where the client is undecided about whether to go for ATE or not, after speaking with their solicitors on the phone. UNDER NO CIRCUMSTANCES MUST YOU AS AN AGENT GIVE THEM ADVICE ON THIS. We
6 aren t qualified, or paid enough to do so, nor are we insured if a client sues us for negligence concerning any advice we might have given them, so please don t ever do it! The way out if you are asked for an opinion or what would you do if you were in my shoes is to refer them back to their solicitors. Carry on with getting the papers signed and politely suggest that they call their solicitor at the first opportunity about this aspect, they won t have to decide about it while you are there, but we do want them committed to the claim. Don t forget that the solicitors will have told the clients the whole story before you get to see them. I appreciate that clients contributing to the cost of their claim is a big change as far as we are concerned, but remember, for the vast majority of clients this will be their first claim, so they, unlike you, will have no previous experience to compare this with. In the early days of modern injury claims, clients of the pioneers Claims Direct paid 30% without hesitation. More recently PPI claimants have been happy to hand over 25 30% of their compensation for what is a much simpler process than an injury claim. Always ask clients to have their home and motor insurance documents ready for you to examine when you visit. If the client does not have them available, record this on the form explaining why. A final point to note concerning Home Contents insurance is that it usually applies to all members of the household, certainly family members. Therefore if a client is living with his/her parents then it is their policy that needs checking. If they are unwilling to give you details that is not a problem, provided that you record that on the form and the client signs it. Taking Statements We need to supply the solicitors with statements in the form of Word documents by , so this is how agents should send them to Beechwood. This gives the solicitor the opportunity to refine the wording if necessary, without having to retype it all. Use the template provided to ensure the vital detail is included and to maintain consistency. The sections in red are to be overtyped with your client s info. Please save the file as Statement Client s Surname (ie Statement Roberts) as this will save time here. It s best to tell clients that you are gathering the information that will form the basis of the statement, to pass on to their solicitor, who will send them a finished version for their approval and signature. You should not therefore get the client to sign anything relating to the statement during your visit. A good civil statement needs to assist with establishing liability and the level of damages. This is done by covering three main areas: 1. The Circumstances or the client s version of events leading up to the accident. This will include detail appropriate to the accident in question. Essentially this is the section where the negligence of the third party is outlined, be they another road user, an employer, or a local authority. Remember that for negligence to be proven there needs to be a duty of care, which has been breached, resulting in injury. 2. The Medical Effects come next. How were they hurt, what happened just afterwards, who helped, what was said, where did they seek treatment and what did they receive. Have they had further medical
7 Medical Mandates appointments and are any more in prospect. Have they recovered? Will they recover fully? What is the prognosis? 3. Finally there are the Consequences. Detailing these can make an average statement superb. How has the accident affected their lives? Did they need time off work, did they need extra help around the house, could they still drive, shop, walk the dog, garden, look after their kids, pursue hobbies and sports, get dressed, go to the loo, the list is endless, but depending on the client you will get a good idea which line of enquiry to follow for this. If, as does happen sometimes, the client suffers no real loss of this sort (e.g. teenager living at home being looked after anyway by mum, who has no need to do more than press the remote on the TV for his entertainment) then tell us that separately by , then we know the questions have been asked, but there was no info forthcoming. Finally this section can also include any incidental expenses so far such as taxis, prescriptions, damaged clothing, but don t go into great detail e.g. 5 days loss of earnings is enough, without going into a complicated explanation of their shift allowances, bonus structure and incremental how s your father s. We are often asked to get the client s signature on a form of authority permitting the solicitor to gain access to the client s medical records held by their GP. These need to be completed whether or not the client has seen their GP in relation to the accident in question. This is because the solicitors need to look for any previous incident that may have a bearing on the claim. This sometimes causes some anxiety, presumably if the client has had a condition they would rather keep under wraps, but if they are uneasy about this, please reassure them that the solicitors keep such info in strict confidence. Just Remember 1) The client will almost always have spoken to the solicitor on the phone, and will be expecting your call, to arrange a time to see them. If not they will have had it in writing. 2) When making the appointment, advise the client to read any paperwork they have received from their solicitors, so they can bring up any points of concern with you. It is best to avoid them starting from fresh when you arrive, or you could be there some time. 3) Also ask them to have home and motor policies to hand, for when you get there. You don't want them turning their house upside down, searching for that safe place, while you sit twiddling your thumbs. 4) Always confirm the client s address, just in case there is a misprint in the instructions. The people at No 3 may not know the lady at No 39, as has happened. 5) You can make a reasonable saving in the visit duration, and look more professional, if prior to seeing the client, you transfer any info that can be gleaned from the instructions, onto the forms enclosed. It also stops you asking daft questions such as what is your address? when you have just driven up to it. 6) Clients are bound to ask you how much they will get and how long will the claim take. At the time of your visit, their solicitor cannot answer that, so neither can you.
8 The amount will depend for one thing upon the medical report from the consultant, yet to be arranged by their solicitor. The time to settle will depend upon, amongst other factors, how long their injury lasts for and whether the claim is contested. Also you should not get drawn into a debate about the circumstances. These are all questions you should politely suggest they discuss with their solicitor. You are not there as an expert in such matters, nor are you paid as such, or insured for this! 7) Clients may ask you what the chances of success are. The fact that you are there means that a solicitor has already examined the available evidence and has decided to take the case on, knowing they will not be paid if they lose. 8) It is always a good idea to ring the client before setting off, to confirm that they are there. We don t get paid if you have to go back, because the client forgot you were coming. 9) If a detail in a document needs to be amended when you are with a client, always get them to initial every correction. 10) Yours will almost certainly be the only face the client sees apart from the medical consultant during the whole process. Please don't forget that you are not only representing Beechwood, but the solicitors who have instructed us. And Finally We insist, as a minimum standard, that all clients are contacted within 24 hours of you receiving the instruction, preferably the same day? Once you have the appointment date, please update that info onto our website, so that we can respond professionally to enquiries from our solicitors. If the appointment is going to be delayed beyond a week, please briefly that to us so that we are in the picture if asked. If a client does not respond to messages, let us know by (as well as putting that on our website) and we can pass that back to the solicitors. This naturally generates a great number of s, please take our grateful thanks as read, and forgive us for only replying to those that demand a response. We stand or fall on our performance. Happily Beechwood has established a reputation for quality, but that is only as good as our last case. We distinguish ourselves from our competitors by the way we represent the solicitors who instruct us, and by helping them retain the clients they send us. Thank you for your vital contribution with this.