Funding litigation can be expensive and dealing with legal costs is often the source of considerable concern for any party involved in a dispute. We hope to alleviate these concerns by offering our clients a bespoke funding package that meets their own unique needs and circumstances. We will work with you to find ways for you to cover the costs of litigation.
Our answers to frequently asked questions relating to litigation funding options are available here.
Potential funding options might include Third Party Funding, Conditional Fee Agreements, Damages Based Agreements, Fixed Fees and Legal Expenses Insurance. We would be happy to discuss the potential options with you, should you be interested in instructing us to pursue or defend a claim. We will take time to consider each of the funding options that might be suitable to meet your individual needs (this might include speaking with a funding broker with specialist expertise in this area).
Please see below a brief summary of the various funding options that might be available to you. You may also be interested to read some of our Frequently Asked Questions.
General cost principles
During the course of the litigation, each party will be responsible for his or her own costs. At the end of the case the judge will decide which party should pay the costs of the litigation. The usual rule is that the losing party will pay the costs of both parties however this is not set in stone. In particular, procedural breaches and/or the conduct of the parties could result in sanctions being imposed by the judge and impact significantly on any costs award made. Parties are also able to make what is called a Part 36 offer to settle during the course of the proceedings, which could also impact on the cost position.
Our fees are billed at standard hourly rates on a time spent basis, plus disbursements and VAT.
Deferred Payment Plan
In some types of litigation we may be able to reach an agreement whereby we defer payment until a time when certain proceeds are realised or the matter is concluded. This type of funding option can be particularly useful for contentious trust and probate cases where money is tied up in the deceased’s estate.
It may also be possible to obtain a loan from a third party to fund the litigation. We are able to assist with identifying a suitable lender.
Fixed Fees and Caps
Keeping clients regularly updated of the cost position at each stage of a case is a given but in some instances we are able to provide certainty of these costs by offering fixed fees or a cap on the level of fees that might be incurred.
Litigation funding is a mechanism whereby a professional investor funds all of the costs of a piece of litigation, including adverse costs, in return for a share of the proceeds.
Any case which has a potential damages or money outcome is a potentially good case for funding. The funder is only paid on success and the merits of a claim, as well as the opponent’s ability to pay, are consequently very important in determining whether the case is suitable for this type of funding.
There should be no difference between a litigant who finances the case themselves and one using funding since the funder must not interfere. The decision to settle or continue with a claim is for the client to decide.
Conditional Fee Agreements (“CFA”)
A CFA is an agreement whereby we will charge you a reduced fee (or occasionally no fee) if your case is not successful, and normal fees plus a “success fee” if your case is successful. This funding option is more commonly known as a “no win, no fee” agreement. A success fee cannot exceed 100% of our base costs.
If your case is not successful then you will still have to pay your opponent’s costs and expenses but you may be able to obtain insurance to protect against this risk (see below).
Damages Based Agreements (“DBA”)
A DBA is an agreement whereby we agree to accept a percentage of the damages received (either by settling the claim or after trial) in place of our usual fees. This is capped at 25% of the damages in personal injury cases, 35% of damages in employment cases and 50% of the damages in all other cases. The figures include expenses, including any fee payable to a barrister and VAT.
Legal Expenses Insurance
Before the Event (“BTE”) is an insurance policy that provides cover for a possible future legal problems. Such cover may form part of an existing household contents, motor vehicle or travel insurance policy, be offered as a benefit by a bank or credit card provider or be available under a policy of insurance maintained by an employer or trade union. We also regularly act for clients with Directors and Officers (D&O) liability insurance cover. The scope of these policies and the cover they offer is often limited but it always worth checking and liaising with the relevant insurer accordingly. We are happy to look at insurance policies on your behalf in order to assist in determining whether you might have appropriate cover.
After the Event (“ATE”) is an insurance policy taken out after a dispute has arisen to protect against the risk of having to pay your opponent’s legal costs and expenses if you lose a case. The amount of premium will depend on the insurer’s estimate of the legal costs that will be required to pursue or defend the claim and the insurer’s assessment of the risks inherent in the case and the likelihood of the case succeeding. The premium is not a recoverable cost of the litigation.
Fiona Simpson (Français)
Dr Rosa Malley