Conditional fee agreements. A client s guide

Transcription

1 Conditional fee agreements A client s guide

2 Private funding a deterrent No win, no fee agreements are legally known as Conditional Fee Agreements. Conditional Fee Agreements are a way of funding personal injury and clinical negligence claims. In a privately funded claim without such an agreement, you would have to pay all our charges ( costs ) for conducting your case up to and including trial. If the case is won, your opponents ( the defendants ) pay your damages and your legal costs on top. We would then make a repayment to you in respect of the costs you had paid to us. The risk is, if the case is lost, you would still have to pay our costs and the defendants costs without recovering any damages - potentially thousands of pounds. It is because of this risk that many clients were deterred from pursuing personal injury and clinical negligence cases in the past. Conditional fee agreements In most cases, we will offer a Conditional Fee Agreement, which will: not charge our fees for conducting your case up to and including trial if you lose arrange insurance to cover the risk that if your case is lost, the defendants costs and your disbursements will be paid. If you win the case: you will still be liable to pay our costs; BUT we will be able to recover all or the large majority of the costs from the losing defendants. Money we have to pay to other people We may ask you to pay the disbursements throughout the case. These could be for: medical reports; court fees; engineers reports; and travelling expenses. If you win, your outlay will almost always be repaid by the defendants in total. If you lose, an insurance policy (if taken out by you) will cover the cost of disbursements incurred. In certain circumstances, we can pay these disbursements for you by way of a loan agreement. We will pay your disbursements as they arise and charge interest at 6% apr. If you win, the defendants should repay all of your disbursements but not interest. The interest accrued would be deducted from your damages. If you lose, the insurance policy will repay your outlay but not any interest outstanding. Conditional fee agreements - a patients guide

3 Insurance If you lose the case, you will still be liable to pay the defendants legal costs and your own disbursements. To guard against this, you can take out an insurance policy. The insurance premium can start from 265 in straight forward personal injury claims. In complex medical negligence claims, the cost can be between 15,000 and 20,000 for around 100,000 worth of cover, depending on the facts and complexity of the case. Some insurers charge a renewal premium of between 20% and 30% every 12 months during the conduct of the case. In some cases we can arrange for you to pay the premium at the end of the case (a deferred premium ). If the case is lost the insurers will pay the: defendants costs; and the disbursements incurred by you after the date of the Conditional Fee Agreement In a deferred premium case you do not have to pay the insurance premium if the case is lost. If the case is won, you pay the insurance premium back in the first instance out of your damages. We then ask the defendants to repay it as part of the solicitors costs claim. In over 90% of cases we are then able to refund the whole cost to you. Success fee The defendants will also pay a success fee on top of your damages and costs at the end of the case. This success fee is not related to, and does not come out of, the damages you are awarded. We can ask for this because: we are taking the risk that we will not be paid at all; and we will not receive any of our costs during the conduct of your case (which could take up to three years). The success fee is based on a percentage of our costs (inclusive of VAT). The level of the success fee depends on our assessment of the chances of success in your case at the outset. Barristers costs We frequently use barristers for advising on your case and for conducting any trials. We may ask the barrister to enter into a Conditional Fee Agreement at the same success fee as ourselves. Next steps In some cases we will enter into a Conditional Fee Agreement straight away. In others, we may have to carry out some investigations including obtaining a medical report. We may ask for a payment on account to undertake these investigations and give you an estimate as to how much the investigations will cost in total. After the investigations are complete, we can advise you whether we will enter into a Conditional Fee Agreement and inform you of the proposed insurance premium and success fee.

4 Some examples of how a Conditional Fee Agreement may work at the end of the case are: 1. If you win 50,000 with 12.5% success fee. No loan for disbursements. Deferred insurance premium: Compensation 50,000 Defendants pay FFW and barrister cost (say) 10,000 Defendants pay FFW and barrister 1,250 success fee (say) Defendants pay your insurance premium (say) Defendants pay your pre-paid disbursements (say) 2,000 Your net gain 50, If you win 50,000 with 12.5% success fee and loan for disbursements: Compensation 50,000 Defendants pay FFW and barrister cost (say) 10,000 Defendants pay FFW and barrister 1,250 success fee (say) Defendants pay your insurance premium (say) Defendants pay disbursements 3,000 You pay interest on bank loan of (say) 3,000 at %apr x 18 months Your net gain 49, If you lose: your insurance pays defendants costs your insurance pays disbursements incurred after date of Conditional Fee Agreement your insurance may pay interest on bank loan (if relevant) You will have paid: the insurance premium (if not deferred ) investigation costs before date of Conditional Fee Agreement (if relevant) Conditional fee agreements - a patients guide

5 Contacts Paul McNeil, Partner Richard Earle, Legal Executive Mark Bowman, Solicitor Paul has specialised in personal injury and medical negligence claims on behalf of victims for over 15 years. He has acted for claimants in the Clapham, Southall, Ladbroke Grove and Potters Bar rail accidents. Paul is a member of the AvMA and the Law Society s Clinical Negligence Panels.. He is also a member of the Association of Personal Injury Lawyers and ATLA. Richard has a wide and varied practice covering clinical negligence and personal injury across the spectrum ranging from cases of maximum severity, such as cerebral palsy, obstetric negligence to oncology, ophthalmic, general and plastic surgery as well as claims against GP s. Richard is also a member of both the AvMA and the Law Society s Clinical Negligence Panels. Mark specialises in medical negligence and personal injury claims. He has a particular interest in cases involving cyclists and is a member of the London Cycling Campaign. He is a member of the Association of Personal Injury Lawyers. Jill Greenfield, Partner [email protected] Samantha Critchley, Solicitor [email protected] Jill has over 14 years experience of acting for claimants. Jill is the firm s referral solicitor for Headway. She sits on the Committee of Headway North London. She has a specific interest in catastrophic injury cases which includes brain and spinal injuries. Jill has acted on a number of high-profile claims, including Tom Dowling v Bowman Farm, The Australian hostel fire cases, the Hatfield train crash and the family of a high profile murder victim. She is described in the Legal 500 as committed and efficient. She is a member of the Association of Personal Injury Lawyers. Sam joined the firm in She specialises in clinical negligence claims and is on the specialist Action Against Medical Accidents (AvMA) panel. Sam has attained the accredited level of Senior Litigator for APIL. She has given talks on clinical negligence issues. Her cases have featured in the law reports. The Legal 500, 2005 reported that, Samantha Critchley is considered a rising star in view of her successes in 2004, including the settlement of a misdiagnosis of breast cancer case and an ophthalmic surgical claim. Field Fisher Waterhouse LLP 35 Vine Street London EC3N 2AA t. +44 (0) f. +44 (0) [email protected] This publication is not a substitute for detailed advice on specific transactions and should not be taken as providing legal advice on any of the topics discussed. Copyright Field Fisher Waterhouse LLP All rights reserved. Field Fisher Waterhouse LLP is a limited liability partnership registered in England and Wales with registered number OC318472, which is regulated by the Law Society. A list of members and their professional qualifications is available for inspection at its registered office, 35 Vine Street London EC3N 2AA. We use the word partner to refer to a member of Field Fisher Waterhouse LLP, or an employee or consultant with equivalent standing and qualifications.