Funding Options Flashcards
what must the retainer include?
- The retainer must set out the fees and charges
what is the solicitors obligation with regard to alternative funding?
- There is no obligation for a solicitor to offer/agree to alternative funding, but if appropriate they should advise the client to seek advice on these services i.e. if the client might be eligible for legal aid
what do costs include?
- Costs = solicitor’s fees and disbursements
what is contentious business?
- Contentious business = business done for the purposes of proceedings before a court or arbitrator
what is non-contentious business?
- Non-contentious business = any work that is not contentious business
o In other words, all work will be NCB until proceedings are issued
what are the traditional funding options?
private funding
fixed fees
non-contentious business agreement
contentious business agreement
explain private funding
- Solicitor’s fees are calculated at an hourly rate on the time spent
- Disbursements and expenses are charged separately
- Client is contractually liable for the costs, regardless of the outcome
o But they may be able to recover some from the o/s if they win
o Likewise, they may have to pay the o/s costs if they lose
explain fixed fees
- Might be ‘fixed fee’ or ‘fixed fee + VAT and disbursements’
- These costs will be fixed from the outset and cannot be changed unilaterally
o The only way the fees can be increased is with client permission - Client is personally responsible to pay the fees
re: non-contentious business agreements
what rate can the solicitor be renumerated at?
- The solicitor may be renumerated by: gross sum, commission, percentage salary, hourly rate or otherwise
re: non-contentious business agreements
what are the requirements for the agreement to be enforceable?
- The NCBA must meet the following requirements to be enforceable:
o In writing;
o Contain all of the terms (i.e. whether VAT and disbursements are inc.);
o Be signed by the client
re: contentious business agreements
what are the requirements for the agreement to be enforceable?
- The CBA must meet the following requirements to be enforceable:
o In writing;
o Contain all of the terms (i.e. whether VAT and disbursements are inc.);
o State it is a CBA;
o Be signed by the client
re: contentious business agreements
what is the effect if the agreement complies with formalities?
- If the CBA meets the formalities, the client cannot have the bill assessed by the court unless the solicitor was renumerated at an hourly rate
re: non-contentious business agreements
what is the effect if the agreement complies with formalities?
- If the CBA meets the formalities, the client cannot have the bill assessed by the court
re: contentious & non-contentious business agreements
how may the court impact the agreement?
- The court can set aside the CBA or reduce the fees if the agreement is unfair or unreasonable
re: contentious business agreements
what rate can the solicitor be renumerated at?
- The solicitor may be renumerated by: gross sum, commission, salary, hourly rate or otherwise (but not a contingency fee)
re: contentious business agreements
how are these agreements different to NCBAs?
- Additional rules for CBAs over NCBAs i.e. the cost of an item shall not exceed what would have been allowed in proceedings
what are the additional funding options available to civil litigation only?
conditional fee agreements
damages based agreements
third party funding
legal expense insurance
what are solicitor costs?
- Solicitor costs = fees the client has agreed to pay their own solicitor
what are client costs?
- Client costs = costs awarded between parties at the end of the case
o Potential cost liability needs to be explained to the client at the outset
what is applicable to both CFAs and DBAs?
In relation to CFAs & DBAs:
o If they do not meet the requirements, the client will not have to pay
o The client can also take out ATE alongside CFA and DBA
o These cannot be used in family or criminal matters
re: conditional fee agreements
what is this?
- CFA = an agreement which states the advocate/litigation services’ fees are only to be paid in specified circumstances (i.e. no win no fee agreements)
re: conditional fee agreements
who can enter into this?
o Solicitors and counsel can enter into CFAs but not experts
re: conditional fee agreements
what is a success fee?
- Success fee = an additional amount payable expressed a % uplift on the amount that would be payable if there was no CFA
re: conditional fee agreements
what are the rules regarding the success fee?
o Must be expressed as a %
o The maximum uplift is 100%
o It is never a % of money awarded to the client (i.e. damages)
o In PI cases, the success fee also cannot exceed 25% of the general damages recovered
o The success fee cannot be recovered from the opponent if the client is successful
o Cannot be arbitrary or at the highest level, it must be based on the RA
re: conditional fee agreements
what is the cap on the success fee?
o The maximum uplift is 100%
o In PI cases, the success fee also cannot exceed 25% of the general damages recovered
re: conditional fee agreements
who pays the success fee?
the client, it can never be recovered from the other side if the client wins
re: conditional fee agreements
what must the solicitor do before entering into a CFA?
The solicitor must always undertake an RA before entering into a CFA which considers:
Chances of success and likely amount of damages
Time to reach trail and amount of work to be undertaken
re: conditional fee agreements
give an example of a CFA
o i.e. the solicitor charges £200 p/h. A 10% success fee would mean the client pays an additional £20 p/h. The max uplift could be 100%, so the client would pay an additional £200 p/h.
re: conditional fee agreements
can CFAs include disbursements?
- The CFA can include disbursements but most firms do not to avoid the risk of being out of pocket
re: conditional fee agreements
when will a CFA not be enforceable?
A CFA will not be enforceable if it does not meet the following requirements:
o Be in relation to a civil litigation matter;
o Be in writing; and
o State the success fee
re: conditional fee agreements
what is the costs outcome if the client loses?
Client loses not liable to pay solicitor fees and success fee
o Liable to pay own disbursements (subject to terms of the CFA)
o Liable to pay opponents’ costs if ordered to do so
re: conditional fee agreements
what is the costs outcome if the client wins?
Client wins liable to pay all fees, expenses and success fee
o They may be awarded costs (inc. solicitor fee and disbursements) (this cannot include the success fee.)
o The client will also be responsible for any shortfall between the award and costs.
re: damages based agreements
what is this?
DBA = an agreement which states the advocate/litigation service/claims management fees will receive a % of monies the client is awarded
o This is called a ‘contingency fee’ (CF) because the payment is contingent upon the client’s success
re: damages based agreements
why is this less common than a CFA?
o Less common than a CFA because there is a higher risk the solicitor won’t be paid.
o Should only be agreed if the client is likely to be awarded monies
re: damages based agreements
what are the caps?
The cap is inclusive of VAT and counsel’s fees:
o 50% of the award
o 35% of the award in employment cases
o 25% of the award in PI cases (not inc. future pecuniary loss)
NB: these caps do not apply to appeal proceedings.
re: damages based agreements
what can the DBA include?
solicitors fees, barristers fees and VAT
re: damages based agreements
what is the position regarding disbursements?
- The client is liable to pay any disbursements (not inc. counsel fees)
re: damages based agreements
give an example of a DBA
If the client has recovered costs, these are deducted from the CF:
o Client agrees a 50% DBA. The client is awarded £20k in damages.
Relevant sums:
£500 disbursements (of which, £300 recovered)
£1,200 counsel fees (of which, £500 recovered)
£1,000 base costs also recovered.
Gross sum payable under DPA = £10,500 (i.e. CF + disbursements)
NB: disbursements only (not counsel costs or solicitor costs)
o Minus any recovered sums (£300 + £500 + £1,000) = £8,700 net amount payable by client
The client will receive £11,300
re: damages based agreements
what happens if the client loses?
- If the client loses, they will not need to pay the solicitor’s costs or CF
- If the client loses, they will need to pay disbursements (inc. counsel fees) & o/s costs if ordered to do so
re: damages based agreements
what are the formalities?
To be enforceable, the DBA must:
o State the proceedings to which it relates
o Be in writing;
o State the circumstances in which a fee is payable; and
o The reason for the fee at the agreed level
re: damages based agreements
what is the effect if the client terminates the retainer early?
- If the client terminates the retainer early (by choice or settlement), they will still be liable to pay
re: damages based agreements
who can engage in a DBA?
- Only claimants and counterclaiming defendants can engage in a DBA
re: third party funding
what is this?
also called litigation funding
When someone with no connection with the case funds litigation i.e. a trade union, specialist litigation funding company
re: third party funding
what is a Specialist Litigation Funding Company (SLFC)?
- i.e. a company which provides financial assistance to a client in return for a fee from monies received at the end of litigation
re: third party funding
when will an SLFC agreement be valid?
- These agreements will be valid as long as there is no impropriety or wrongdoing (i.e. attempting to inflate damages)
re: third party funding
who can engage in an SLFC agreement?
The following can engage in this type of agreement:
o Commercial claimants
o Individual claimants (apart from PI and consumer cases)
o Counterclaiming defendants
re: third party funding
what will the SLFC consider when deciding whether to enter into this agreement?
The SLFC will consider the following when deciding whether to fund a case:
o Prospects of success (i.e. more than 60%)
o Size of the possible award and if this will cover their fees (typically SLFCs will not take cases where the litigant will be left with less than 50% of the award after deduction of fees
o Strength of any counterclaim
o Length of litigation
o Ability of the defendant to pay
re: third party funding
what does a SLFC typically only include?
- Typically the agreement will only cover the client’s costs and disbursements
re: third party funding
how will the SLFC fee be expressed?
- The SLFC’s fee will be set out in the agreement (i.e. it might be a % of award)
re: third party funding
what impact can the court have on an SLFC?
- The court has discretion to make a third-party costs order for the SLFC to pay the opponent’s costs. This will likely depend on how much influence they had.
re: third party funding
explain the position of STARs and SLFC agreements
The solicitor remain mindful of StaRs I.e.:
o Minimising influence of SLFC to prevent a COI
o Not to breach confidentiality of client to SLFC
re: legal expense insurance
what are the types?
before the event insurance
after the event insurance
re: legal expense insurance - BTE
how might the client have this?
- The client may have this as part of household or motor insurance
re: legal expense insurance - BTE
what must the solicitor do?
- The solicitor must check the terms of the insurance i.e. does it cover the type of work and liability for client costs
- The client will need to be advised of any excess payable
re: legal expense insurance - BTE
when can this be relied upon?
- It can only be relied on if the insurer accepts the claim. The insurer will usually only accept claims where there is at least 50% chance of success
- The insurer will also usually want to use their own solicitors
re: legal expense insurance - ATE
when is this not available?
- Not available in family matters
re: legal expense insurance - ATE
when is this taken out?
- This is taken out after the dispute has arisen
re: legal expense insurance - ATE
what does this usually cover?
- This will usually cover disbursements and opponent’s costs but may include the client’s own legal fees
re: legal expense insurance - ATE
when is the insurer likely to accept a claim?
The insurer will usually only accept claims where there is at least 60% chance of success
o The premium payable depends on the strength of the case
o The premium cannot be recovered from the opponent
re: legal expense insurance - ATE
why must the solicitor be cautious?
- The solicitor must be cautious when recommending/arranging ATE
re: legal aid
what does a firm need to carry out this work?
- To carry out LA work, firms must have a contract with the legal aid agency (LAA) which specifies the area of law
re: legal aid
are firms obliged to accept LA work?
- Firms are not obliged to accept LA work (exception - criminal duty scheme)
re: legal aid
what is the effect if the client is eligible?
- If eligible, the client will have all or part of their fees paid for
- If the client is eligible for LA but LA is not offered by the firm, the solicitor should suggest they consider alternate legal advice
re: legal aid
what are the requirements to carry out LA work once a contract is in place?
o Must be audited annually by the LAA to check files are run properly
o Parties and the court must be informed a client is LA-funded
o The solicitor must inform the LAA if the client act unreasonable (i.e. refuses to accept a reasonable settlement or has been misleading) (this overrides a solicitor’s duty of confidentiality)
re: civil legal aid
in what type of cases is this available?
o Homelessness
o Domestic violence
o Discrimination
o Immigration & care proceedings (different rules to the below)
LA is not normally available in the following cases (some limited exceptions):
o PI
o Divorce & family disputes about children
o Cases related to carrying on business
o In cases which could be funded by a CFA
re: civil legal aid
when is LA not normally available?
- LA is not normally available in the following cases (some limited exceptions):
o PI
o Divorce & family disputes about children
o Cases related to carrying on business
o In cases which could be funded by a CFA
re: civil legal aid
when can the LAA grant funding outside of its usual scope?
the LAA can grant funding outside of its usual scope in exceptional circumstances i.e. refusal would be a breach of human rights
re: civil legal aid
what happens if the client wins?
If the client wins/settles in their favour, solicitor fees will need to be repaid. The solicitor will then pay this to the LAA. These are recovered as follows:
o Monies under a costs order;
o Monies paid by the client under the terms of the LA offer
o If there is still a deficit, money from the award
re: civil legal aid
how does a client get LA?
the solicitor will need to make an application to the LAA for LA
re: civil legal aid
what happens if the LA application is approved?
o If approved, they will issue a LA certificate which outline the cap on fees and type of LA
o If the case will require more work, the solicitor will need to apply for the certificate to be amended
re: civil legal aid
can this be obtained on short notice?
- LA can be obtained on an emergency basis i.e. DV cases or homelessness
re: civil legal aid
what are the types of LA work?
- Legal help (controlled work)
- Help at court (controlled work)
- Legal representation (licensed work) (LR)
there are more types in family work
re: civil legal aid
who determines the client’s eligibility for controlled work?
solicitor
re: civil legal aid
who determines the client’s eligibility for licensed work?
LAA
re: civil legal aid
what type of work is legal help?
controlled work
re: civil legal aid
what type of work is help at court?
controlled work
re: civil legal aid
what type of work is legal representation?
licensed work
re: civil legal aid
what does legal help include?
- This is basic advice and limited steps following from this, i.e.: drafting a letter / obtaining information from a 3rd party
- It does not include issuing, conducting proceedings, advocacy or instructing an advocate
re: civil legal aid
what does help at court include?
- Advocacy and instructing an advocate for a particular hearing (not general representation)
re: civil legal aid
what are the types of legal representation?
- Investigative assessing strength of contemplated / current litigation only
- Full representation issuing and conducting proceedings
re: civil legal aid
when is legal representation available?
- LR is available to parties to current or ongoing proceedings and those who wished to be joined to proceedings
- This can be obtained on an emergency basis i.e. DV
re: civil legal aid
what are the eligibility tests?
- All LA clients are subject to the same means test
- The merit test to be applied depends on the type of legal work
re: civil legal aid
in summary, when will a client satisfy the means test?
- A client will only be eligible for LA if their capital and income does not exceed certain limits.
re: civil legal aid
what information will the client need to produce for the means test?
- The client will need to produce full details of their financial circumstances.
re: civil legal aid
what is the decision tree for the means test?
- STAGE 1 does the client have more than £8,000 capital (or £3,000 in immigration cases)?
o YES they automatically do not qualify for LA.
o NO go to stage 2. - STAGE 2 is the client in receipt of universal credit, income support, JSA, ESA or pension credit?
o YES client is eligible for LA.
o NO assess their income. - STAGE 3 does the client’s gross monthly income exceed £2,675?
o YES they do not qualify for LA.
o NO establish the client’s disposable income by deducting basic living and family expenses. - STAGE 4 is the client’s monthly disposable income less than £733?
o YES the client is eligible for LA.
o NO the client is not eligible for LA
re: civil legal aid
what is stage 1 of the means test?
does the client have more than £8,000 capital (or £3,000 in immigration cases)?
o YES - they automatically do not qualify for LA.
o NO - benefits to be considered.
re: civil legal aid
what is stage 2 of the means test?
is the client in receipt of universal credit, income support, JSA, ESA or pension credit?
o YES - client is eligible for LA.
o NO - assess their income.
re: civil legal aid
what is stage 3 of the means test?
does the client’s gross monthly income exceed £2,675?
o YES - they do not qualify for LA.
o NO - establish the client’s disposable income by deducting basic living and family expenses.
re: civil legal aid
what is stage 4 of the means test?
is the client’s monthly disposable income less than £733?
o YES - the client is eligible for LA.
o NO - the client is not eligible for LA
re: civil legal aid
even if the client is eligible for legal aid, when will they be required to contribute?
licensed work (i.e. legal representation):
o If the client’s monthly disposable income is above £315, they will need to make a monthly contribution; or
o If their capital is above £3,000 they will need to make a capital contribution
re: civil legal aid
give an overview of the merits test
The merit test to be applied depends on the type of legal work
We consider the ‘general merits criteria’. There is also the ‘specific merits criteria’ which is applicable to certain types of case (i.e. immigration)
re: civil legal aid
what is the merit test for legal help & help at court?
- Sufficient benefit test - i.e. there is likely to be a sufficient benefit to an individual, having regard to all the circumstances
re: civil legal aid
give an overview of the merits test for legal representation
- All LR cases must meet the standard criteria. There is then an additional criteria to satisfy for investigation and full representation
re: civil legal aid (legal rep - merits test)
what is the standard criteria?
they will only qualify for LR if:
o A CFA is unavailable
o There is no one else who can reasonably be expected to bring the claim
o Other alternatives have been exhausted (inc. any complaints system)
o It is required by the circumstances of the case, i.e.;
Nature and complexity of issues
Existence of other proceedings’ and
Interests of other parties to the proceedings
o The proceedings are not likely to be allocated to the small claims track
re: civil legal aid (legal rep - merits test)
what is the investigative representation criteria?
they will qualify for IR only if:
o The prospects of success are unclear and substantive work is required to determine the prospects;
o There is reasonable grounds to believe that once the investigative work is complete, the case will satisfy the criteria for full representation; and
o If the claim is for damages which are not likely to exceed £5,000, then the case must be of significant wider public interest
re: civil legal aid (legal rep - merits test
what is the full representation criteria?
they will qualify for FR only if they satisfy:
o The cost benefit criteria;
o The prospects of success criteria; and
o Multi-part action damages criteria is met, if relevant (not considered)
re: civil legal aid (legal rep - merits test)
explain the cost benefit criteria
three scenarios:
o Any case of significant wider interest CBC satisfied
o Monetary case not of wider public interest CBC will be satisfied if the likely damages will exceed the costs (there are specific ratios to be applied depending on the prospects of success)
o Non-monetary case not of wider public interest reasonable private paying individual test must be satisfied i.e. the potential benefit justifies the costs, such that a reasonable private paying person would be prepared to litigate
re: civil legal aid (legal rep - merits test)
explain the prospects of success criteria
this is met if the prospects of success are:
o At least 50%; or
o Less than 50% and the case is of significant public importance or overwhelming importance to the individual
re: civil legal aid
what may the LAA allow if the client wins?
- The LAA may agree to a statutory charge (i.e. charge against the client’s property) for the fees owed
re: criminal legal aid
what are the types?
Advice at the police station
Duty solicitor scheme
Post-charge legal aid
re: criminal legal aid
explain ‘advice at the police station’
- Anyone who attends the police station (under arrest or voluntarily) is entitled to free legal advice (irrespective of means)
re: criminal legal aid
how is a solicitor paid in relation to advice at the police station?
- Solicitor claims for work under the Police Station Advice and Assistance Scheme
- The solicitor will receive a fixed fee regardless of nature or time
re: criminal legal aid
explain the duty solicitor scheme
- There is a duty rota for the Mags and police station for solicitors to represent those who do not have legal representation
re: criminal legal aid
how is a solicitor paid in relation to the duty solicitor scheme?
- Solicitor’s claim costs under Advocacy Assistance Scheme
- A solicitor cannot refuse instructions on the basis it would be unremunerative to do so
re: criminal legal aid
explain post-charge legal aid
- The client must make an application for LA and they will need to satisfy means and merit test
- If the application is successful, a representation order will be granted
o This can be extended i.e. if there is an appeal
re: criminal legal aid
when is the merits test automatically met?
- The test is automatically met if they are under 18 or the case is in the CC
re: criminal legal aid
when is the merits test met?
automatically where D is under 18 or the case is in the CC
otherwise, if it is in the interests of justice
re: criminal legal aid
what will the LAA consider when deciding whether it is in the interest of justice?
LAA will consider:
o Loss of liberty, livelihood or suffer serious damage to their reputation
o If the case involves consideration of a substantial question of law
o If client can understand proceedings / state their own case
o Expert cross examination of witnesses
o Interests of justice of another person that they be represented
o There is some other reason in the interests of justice
re: criminal legal aid
when is the means test automatically satisfied?
Automatically met if D is under 18 or they are in receipt of benefits.
re: criminal legal aid
give an overview of the merits test where it is not automatically satisfied
- Brief assessment to calculate adjusted income
- If applicable, full means test to determine disposable income. Family circumstances will be considered and essential expenses will be deducted
re: criminal legal aid
if the adjusted income is £12,475 or less, will D be eligible for legal aid?
MC - yes
CC - yes
re: criminal legal aid
if the adjusted income is more than £12,475 but less than £22,325, will D be eligible for legal aid?
MC - full means test required
CC - full means test required
re: criminal legal aid
if the adjusted income is more than £22,325, will D be eligible for legal aid?
MC - no
CC - full means test required
re: criminal legal aid
if D’s disposable income is less than £3,398, will they be entitled to legal aid?
MC - yes
CC - yes
re: criminal legal aid
if D’s disposable income is more than £3,398 and less than £37,000, will they be entitled to legal aid?
MC - no
CC - yes, but required to contribute
re: criminal legal aid
if D’s disposable income is more than £37,000, will they be entitled to legal aid?
MC - no
CC - no
