No win, no fee

andymc

I didn't realise that with no win no fee cases, you have to pay for the court cost.

I thought you didn't have to pay for anything.

I asked the solicitor this, and he said no I don't pay anything.

He wanted me to sign the agreement 8 months ago, and so I asked him specifically, because I didn't want to sign anything that meant I had to pay for anything, as I told the solicitor that I haven't got any money.

I feel I've been stitched up. I didn't understand the legal speak on the agreement, and because the solicitor was a friend of my wife's boss, I trusted him, that he told me the truth about it not costing me anything.

Now yesterday he said I have to pay £2500 to go to court, as unexpectedly the other side are digging their heels in.

I know that your supposed to understand what your signing, but it was too complicated for me, and that's why I checked with him and told him my financial situation.

Does anybody think I have been stung, or is it just me?

unholyangel

It underwent a reform in 2013 (possibly 2014) and now, there is no such thing as no win no fee. They were replaced with conditional fee arrangements/agreements.

It used to be whatever you were awarded was yours and they claimed their costs from the other party (and if you lost, it would be covered by an insurance policy theyd taken out).

Now, if you win the fees are deducted from your winnings - capped at 25%. But they were (as far as I'm aware) still doing the insurance thing for if you lost.

When you say you'll have to pay to take it to court, does that mean that he's said if you want to proceed, you'll have to pay? Or is he saying that money is due whether you proceed or not? If its the former, I suspect that the chances of success aren't that great and they've been unable to get a company to underwrite the risk or that the costs involved in taking it past this point will surpass the 25% cap.

neilmcl

andymc wrote: »

I didn't realise that with no win no fee cases, you have to pay for the court cost.

I thought you didn't have to pay for anything.

I asked the solicitor this, and he said no I don't pay anything

You thought wrong. The clue's in the name, no win no FEE, ie, you don't pay the solicitor fee. Court costs are never covered in this kind of arrangement.

andymc

UnholyAngel, that is really helpful, thank you.

One question, if I back out, do I have to pay everything myself currently, which consists of medical bills and time the solicitor has worked on it?

Because you suggest that I have an option ask him if I want to proceed.

You are correct about the insurance policy, and the way he explained it to me this morning is that if I win or lose, I would get the court fee reimbursed by the insurance company.

He wants me to sign a document that gets forwarded to the other side, but I am reluctant.

He asked me to ask a rich relative for the money, as he knows we don't have anything, but this seems like he's not sure that I would be able to get the money.

Basically want I wanted to know is am I now liable to pay even if he ends the claim, not me?

unholyangel

andymc wrote: »

UnholyAngel, that is really helpful, thank you.

One question, if I back out, do I have to pay everything myself currently, which consists of medical bills and time the solicitor has worked on it?

Because you suggest that I have an option ask him if I want to proceed.

You are correct about the insurance policy, and the way he explained it to me this morning is that if I win or lose, I would get the court fee reimbursed by the insurance company.

He wants me to sign a document that gets forwarded to the other side, but I am reluctant.

He asked me to ask a rich relative for the money, as he knows we don't have anything, but this seems like he's not sure that I would be able to get the money.

Basically want I wanted to know is am I now liable to pay even if he ends the claim, not me?

I can't really comment on the agreement you signed up to as I haven't seen the T&C's. But it should be detailed in there under what circumstances either party can end the agreement and whether withdrawing will incur any fees.

There have been cases of solicitors wrongly trying to transfer the risk to the clients, such as when they went ahead with the case despite being less than 50% success chance - which was in breach of the insurers T&C's and meant the insurer wouldnt pay out or when the T&C's state the solicitor can end the claim if information is withheld, yet the customer didn't lie or withhold the information, they just never asked for it until costs had already been incurred - in both those situations the solicitors were at fault and liable for the costs.

It may be worth trying to get a free half hour consultation with another solicitor or even if your local CAB have any that volunteer (some branches do, some dont) and get them to give you the cliff notes version of the contract you signed up to. But that is only if your current solicitor really hasn't been forthcoming with questions you have asked of him - if you haven't told him of your difficulty in understanding what you've signed up to, what happens if xyz etc then speak to him first - it is after all what he's being paid for.

andymc

That's really helpful, I was going to phone CAB as well. Here is the T&C's but it gives me a headache trying to understand it as it is quite long:

Agreed Terms
1 Interpretation
1.1 The following terms apply, as do those that are defined in the Conditions and Qualifications:
Opponent
Claim Shall mean the following claim: on 15/06/2015
Agreement Date:
2 What is covered by this Agreement
2.1 This Agreement covers all the work since the Solicitors were first instructed.
2.2 Unless it is agreed otherwise, this Agreement will cover the following:
2.2.1 The Claim, including costs incurred prior to this Agreement being made;
2.2.2 Any appeal by the Opponent;
2.2.3 Any appeal the Client makes against an interim order;
2.2.4 Any pre-issue applications relating or potentially relating to the Claim;
2.2.5 Any work ancillary to the Claim, such as attending relevant proceedings before tribunals or courts other than the civil courts;
2.2.6 ADR (including mediation) relating to the Claim; and
2.2.7 Negotiations about and/or a court assessment of the costs of the Claim.
2.3 Unless other arrangements are put in place, this Agreement will continue to apply in any relevant costs proceedings, appeals, etc, and this will be so notwithstanding the fact that they may take place after the Claim has concluded.
2.4 To the extent that this Agreement is retrospective (if at all), it covers work done prior to the Agreement Date.
3 What is not covered by this Agreement (unless it is agreed otherwise)
3.1 Unless it is agreed otherwise (such agreement being capable of being implied by the counterparties’ conduct), this Agreement does not cover the following:
3.1.1 Any proceedings taken by or against the Client to enforce a judgment, order or agreement;
3.1.2 Any counterclaim;
3.1.3 Any appeal the Client may make against the final judgment order; and
3.1.4 Any work the Solicitors do which ordinarily would be funded by way of commission, such as the task of selecting certain ATE insurers.
3.2 For the avoidance of doubt, where the Solicitors carry out work which is not covered by this Agreement (by implication or otherwise), the costs associated with that work (including Disbursements) will be payable unconditionally and upon the Solicitors’ general Terms and Conditions (or upon other terms as may be appropriate); if the Solicitors have not separately specified hourly rates in this regard, then the hourly rates set out herein will apply for the relevant period.
4 Paying for the Solicitors’ services
4.1 Losing:
If the Claim is Lost, the Client will pay Disbursements. Unless they have already become payable by reason of previous Interim Hearing, neither Basic Charges nor any Success Fee will be payable.
4.2 Winning:
Subject to the provisions set out below, if the Client Wins the Claim, the Client will pay Basic Charges, Disbursements, and Success Fee.
4.3 Part 36 Offers:
Basic Charges are unaffected by Part 36 Offers and will be payable regardless of whether a Part 36 Offer has or has not had a bearing on the recovery of costs.
If a Part 36 offer has been made and not accepted and if the court deprives the Client of costs as a result of that offer having been made and not accepted, the Success Fee will cease to be payable for the period during which the court has deprived the Client of costs. This will not be the case, however, where the Solicitors advised that the offer be accepted or where the Solicitors were not given an opportunity to advise on whether it should be accepted.
4.4 Interim hearings:
If on the way to Winning or losing the Claim the Client Wins an Interim Hearing, then (subject to the other provisions herein) the Solicitors are entitled to immediate payment of Basic Charges and Disbursements relating to that hearing. If the Client subsequently Wins overall, a Success Fee will, in addition, be payable.
4.5 Costs-only awards:
It may be that the court awards costs against the Opponent in circumstances in which the Claim has been dismissed, discontinued or otherwise brought to an end in a way that means that the only benefit derived by the Client is an award of costs. In those
circumstances, Basic Charges will be payable on those costs to which that order relates, but no Success Fee or other Basic Charges will be payable.
4.6 Termination:
If this Agreement ends as a result of the Client having failed to discharge their obligations under “the Client’s Responsibilities”, the Client will be liable to pay Basic Charges and Disbursements in full. If the Client then goes on to Win the Claim, the Client will also pay a Success Fee.
Other circumstances are addressed in the Conditions and Qualifications.
4.7 Costs not recovered from the Opponent:
Other than where the contrary is expressly stated herein, any shortfall in the recovery of costs from the Opponent will be payable to the Solicitors (usually out of any damages recovered). In particular, the Success Fee is payable in full by the Client and cannot be recovered (either in part or in whole) from the Opponent (see below).
5 The Success Fee
5.1 The Success Fee is not recoverable from the Opponent. It is recorded that the Client consents to paying the Success Fee and that to that extent, the Client’s rights under s 74(3) of the Solicitors Act 1974 are waived, as it the Client’s right to rely on the presumption relating to “unusual costs” in CPR rule 46.9(3)(c).
5.2 The success fee is set at 100% of our basic charges, where the claim concludes at trial; or 100% where the claim concludes before a trial has commenced.
5.3 The success fee percentage reflects the following:
5.3.1 the fact that if you lose, we will not earn anything;
5.3.2 our assessment of the risks of your case;
5.3.3 any other appropriate matters;
5.3.4 the fact that if you win we will not be paid our basic charges until the end of the claim;
5.3.5 our arrangements with you about paying expenses and disbursements.
5.3.6 the arrangements about payment of our costs if your opponent makes a Part 36 offer or payment which you reject on our advice, and your claim for damages goes ahead to trial where you recover damages that are less than that offer or payment.
5.4 The Success Fee cannot be more than 100% of the basic charges in total.
5.5 Cap on the amount of Success Fee which you will pay us in the event of Success in proceedings at first instance
5.6 There is a maximum limit on the amount of the success fee which we can recover from you.
5.7 That maximum limit is 25% of the total amount of any:
5.7.1 general damages for pain suffering and loss of amenity; and
5.7.2 damages for pecuniary loss, other than future pecuniary loss;
which are awarded to you in the proceedings covered by this agreement. The maximum limit is applicable to these damages net of any sums recoverable by the Compensation Recovery Unit of the Department of Work and Pensions. The maximum limit is inclusive of any VAT which is chargeable.
5.8 Where counsel has been instructed by the Solicitors and where counsel has also been instructed under a conditional fee agreement that provides for a success fee, the maximum limits referred to immediately above will apply to the aggregate success fee charged by both counsel and the Solicitors as well as to the Success Fee charged by the Solicitors.
5.9 However, this maximum limit applies only to a success fee for proceedings at first instance and not to a success fee on other proceedings (such as, for example, an appeal against a final judgment or order).
5.10 We will provide you with a copy of any relevant judgment or of our calculation of any settlement showing how much of your damages should be attributed to General Damages and Past Pecuniary Loss, net of any sums recoverable by the Compensation Recovery Unit.
5.11 You have the right to apply to the court for assessment of our costs, including our success fee.
6 Basic Charges
6.1 Basic Charges are calculated for each hour (or part thereof) in six-minute units engaged on the matter. Routine letters and telephone calls will be charged as units of one-tenth of an hour. Other letters and telephone calls will be charged on a time basis. There will be no charge for short incoming letters, but longer incoming letters will be charged on a time basis.
6.2 The hourly rates may be set out in correspondence to the Client and or in the attached Schedule. The hourly rates may be varied from time-to-time.
6.3 It may be that fixed fees (as defined by the rules of Court and/or associated protocols and practice directions) apply to the Claim. Where there is a difference between the amounts payable under this Agreement and Fixed Fees, it is recorded that the Client consents to paying that difference (and any associated taxes and/or Success Fee) and that to that extent, the Client’s rights under s 74(3) of the Solicitors Act 1974 are waived, as it the Client’s right to rely on the presumption relating to “unusual costs” in CPR rule 46.9(3)(c).
7 Other points
7.1 This Agreement incorporates the Conditions and Qualifications; where, however, this Agreement makes provisions which are different from or incompatible with the provisions in that document, this Agreement shall prevail. Where there is more than one contract of retainer created under this Agreement, the terms will apply to each retainer as if they had been set out individually in that retainer.
7.2 The parties acknowledge and agree that neither this Agreement nor any retainer created under it is to be regarded as being a contentious business agreement within the terms of the Solicitors Act 1974.
7.3 This Agreement is governed by the law of England and Wales. Save for enforcement proceedings and save where an English court orders otherwise, any dispute pertaining to it must be litigated exclusively within that jurisdiction.
7.4 In the event that any term or condition or provision of this Agreement is held to be a violation of any applicable law or statute or regulation, the same shall be deemed to be deleted from this Agreement and shall be of no force and effect and this Agreement shall remain in full force and effect as if such term and condition or provision had not originally been contained in this Agreement. This provision is without prejudice to the provisions in the first paragraph under “other points” above.
7.5 It is recorded that prior to signing this Agreement, the solicitors explained the following:
7.5.1 the circumstances in which the Client may be liable for the costs and whether the Solicitors will seek payment of those costs from the client, if entitled to do so;
7.5.2 if relevant, the fact that if Fixed Costs apply to the Claim, further costs may be payable notwithstanding the fact that those further costs are not (as a matter of principle) recoverable from the Opponent;
7.5.3 The fact that the Success Fee is not recoverable from the Opponent and that the Client must pay it;
7.5.4 the Client’s right to an assessment of costs; and
7.5.5 the Client’s entitlement to take independent legal advice upon the matters set out herein, if that is what the Client wishes to do.
For the avoidance of doubt, the Solicitors do not believe that independent legal advice is either required or desirable.
7.6 To be effective (and unless the court orders otherwise), any variation of or supplement to this Agreement must be made in writing (which may include correspondence).
7.7 Where the Client is a natural person and where he is seen at a place other than the Solicitors’ offices, then this Agreement will be deemed to be compliant with regulation 7 of the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008, and in particular, the Client will be entitled to cancel the contract within the cancellation period defined therein. In this regard, regulation 7 is (with the necessary changes) incorporated within this Agreement as if it had been set out herein in its entirety. The Notice of Right to Cancel is part of this agreement and should appear after the page that contains the signatures.
7.8 This paragraph is included for the purposes of complying with the Consumer Protection (Distance Selling) Regulations 2000 (as amended):
7.8.1 The Solicitors’ identity is set out before the heading “Agreed terms” (above) all complaints should be addressed to xxxxxxxx
7.8.2 The services the Solicitors intend to provide are legal services;
7.8.3 The prices are as set out above and in the Schedule; VAT is added to those prices;
7.8.4 The arrangements for payment are set out in the Conditions and Qualifications and above;
7.8.5 The Client has a right to cancel this Agreement; he may do this at any time in the period of seven working days beginning with the day after the day on which this Agreement was made (a ‘working day’ being a day other than a Saturday, Sunday and public holiday);
7.8.6 If the Client agreed to services starting within what otherwise would have been that cancellation period, that right to cancel will be lost; and
7.8.7 It is agreed that the Solicitors will not be able to finish the task of providing the Client with legal services within 30 days of this Agreement being made; the Client agrees that the Solicitors may take longer than 30 days to perform the Solicitors’ obligations under this Agreement, and that to that extent, paragraph 19 of the aforesaid 2000 Regulations will not apply.

unholyangel

Theres quite a few things jumping out about those terms.

For one thing, they seem rather short to be that of a CFA. I've never seen a CFA that was less than 3 pages of a4. Secondly, this part:

7.5 It is recorded that prior to signing this Agreement, the solicitors explained the following:
7.5.1 the circumstances in which the Client may be liable for the costs and whether the Solicitors will seek payment of those costs from the client, if entitled to do so;
7.5.2 if relevant, the fact that if Fixed Costs apply to the Claim, further costs may be payable notwithstanding the fact that those further costs are not (as a matter of principle) recoverable from the Opponent;
7.5.3 The fact that the Success Fee is not recoverable from the Opponent and that the Client must pay it;
7.5.4 the Client’s right to an assessment of costs; and
7.5.5 the Client’s entitlement to take independent legal advice upon the matters set out herein, if that is what the Client wishes to do.

Imo its a complicated situation. It sounds like you could possibly have grounds for complaint with the ombudsman however you may not want to do this if he's a close friend of your wifes boss.

However in the first instance, I still maintain you should approach your solicitor about this, discuss your concerns with him and that you feel this claim type shouldn't have been offered to you given your repeated (assuming it was repeated) statements that you could not afford to fund any legal action. Perhaps even point out that according to the T&C's, he should have explained to you when you might be liable for costs etc and see what he says.

andymc

Thanks very much for your input.

I feel a bit of an idiot now.

I should have read the t&c's but when a solicitor who's a friend of a friend assures you that there's nothing to pay, because I didn't understand what I was signing, then it's not very good is it.

Frightened to death now of what's to come.

I always thought that no win no fee didn't cost you anything, and now because I have already got debts to pay to people and can't even save up, I am in deep xxxx.

I have to phone the solicitor again, but business is business, however nice he sounds on the phone.

pinkshoes

andymc wrote: »

I always thought that no win no fee didn't cost you anything, and now because I have already got debts to pay to people and can't even save up, I am in deep xxxx.

I have to phone the solicitor again, but business is business, however nice he sounds on the phone.

Well those 'no win no fee' TV adverts do say you dont pay a penny unless you win...

I have looked through the T&Cs and cannot see anywhere where it explains you would have to pay a court cost.

A court cost is not an 'unexpected' cost, as the whole point of the case is going to court if an agreement can not be made!

I would be asking the solicitor to highlight the section in the T&Cs which states that you will need to pay court costs up front, as this goes against the very nature of a 'no win no fee' claim.

naedanger

pinkshoes wrote: »

I have looked through the T&Cs and cannot see anywhere where it explains you would have to pay a court cost.

From the t&c's:

4 Paying for the Solicitors’ services
4.1 Losing:
If the Claim is Lost, the Client will pay Disbursements. Unless they have already become payable by reason of previous Interim Hearing, neither Basic Charges nor any Success Fee will be payable.

According to the following link, disimbursements are :

This is money which your solicitor has to pay to third parties to help prepare your case. For example, court fees, fees for medical or other expert reports.

http://www.compactlaw.co.uk/free-legal-information/accident-claims/what-are-disbursements.html

That said the op, as far as I am aware, has not lost. And I fully agree with the sentiment, and the rest of your post.

However the wording does read to me as though he would be liable for these costs if he lost. In other words he was not well informed by his solicitor.

If I were in the op's position I would definitely be speaking to the solicitor for further clarification, and would considering speaking to the CAB if I was not fully satisfied with the response.