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No Win, No Fee

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“No win, no fee” offers access to the courts for those who might otherwise be unable to afford the costs of pursuing a claim. When Legal Aid was (for most types of claim) withdrawn, it was important to find other ways to fund court action. The Conditional Fee Agreement (‘CFA’) has been very widely used. The solicitor’s fees are contingent on the success of the case. An uplift applies to the usual level of costs so that the solicitor is compensated for the risk he takes in supporting the action. The costs are recoverable from the other side. It is also common for the claimant to take out an ‘After The Event’ (‘ATE’) policy to insure against the risk of losing the case and having a liability for the opponent’s costs. The premium has also been recoverable as part of the costs award in successful cases.

A recent example was the case of Christopher Jefferies who was arrested on suspicion of involvement in the murder of Jo Yeates. He was able to instruct his solicitors to take action against a number of newspapers over their coverage of the matter. He is now reported as having settled his libel action on receiving an apology and substantial damages. Mr Jefferies said: “I think there is absolutely no question that I wouldn’t have been able to take the action that I did because at the moment, one is able to take out a conditional fee agreement and that means that the lawyer’s success fees, which are a percentage of the total legal costs of taking the action, will be paid by the other side and one won’t be responsible for those.” He has expressed his dismay at proposals for a change in the law that would lead to lawyers having a share of the damages rather than recovering success fees from the other side. See further the BBC coverage.

SWLaw has offered CFAs in appropriate cases and continues to do so. They cover a wide range of litigation including claims for accidents and personal injury. One of the reasons for the proposals for change is to reduce the costs incurred by public authorities – eg local councils and the NHS – in claims brought against them. If CFAs, along with recovery of ATE premiums, is no longer allowed, it will be much more difficult for claimants to bring actions and there will be increasing reliance on insurance such as the cover in household, motor, travel and commercial insurances taken out ‘Before The Event’.

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