Legal Services 4 Flashcards
Funding options
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Retainer
Contractual relationship between solicitor and client.
Fees agreed at outset.
Para 8.7 code of conduct - best possible information about how matter will be priced, likely overall cost of matter.
Cost - fees and disbursements.
1.2 must not abuse position.
Prospective client cannot expect solicitor to act solely in clients interest when agreeing level of renumeration.
Client can challenge bill. Cost officer reduces amount more than 50% must alert SRA.
Not obliged to have one certain way of paying fees. Must direct elsewhere (legal aid).
Para 3.4 - take into accounts attributes, needs and circumstances.
Private funding
Hourly rate.
Must give likely outset.
Fixed fees
Established and known at outset.
Can be VAT plus disbursements.
Can only be varied by client agreement.
Contentious and non-contentious business
Contentious - business done whether as solicitor or an advocate in or for the purposes of proceedings begun before a court or an arbitrator. Not non-contentious or common form probate
Non-contentious - not contentious.
Non-contentious business arrangements - renumerated by gross sum, commission, a percentage, a salary or otherwise.
Must comply with s57 Solicitor Act 1974 ;
be in writing
signed by client
contain all terms of agreement.
Client can still apply to court to reduce fees.
Contentious business arrangements;
gross sum, hourly rate, salary or otherwise. Not a contingency fee.
Agreement must;
(a) the agreement must state it is a contentious business agreement;
(b) the agreement must be in writing;
(c) the agreement must be signed by the client; and
(d) the agreement must contain all the terms.
where enforceable, client will be unable to apply to court for assessment of costs (except hourly rate). Court may set aside or reduce if unfair or unreasonable.
Funding civil litigation
Solicitor and client costs - fees agreed to be paid to solicitor and cost awarded at end.
Variable fees - change a fee depending on outcome
Conditional fee agreement -
s58(2)(a0 - agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them to be payable only in specified circumstances
- whether or not client succeeds.
Low or no when lost, higher when won.
Higher fee must be expressed as percentage increase from usual cost
Must be enforceable under ss58 and 58A Court and Legal Services Act 1990;
(a) may be entered into in relation to any civil litigation matter, except family proceedings;
(b) must be in writing; and
(c) must state the percentage by which the amount of the fee that would be payable if it
were not a CFA is to be increased.
Cannot exceed 100%. Personal injury cap of 25%.
Cannot include success fee.
Can include disbursements although not usual as client may have to pay opponents disbursements.
After-event insurance - covers other sides cost and own disbursements in event of losing case.
Some supply loan to pay as you go.
Cannot pay experts.
Solicitor should conduct risk assessment;
(a) the chances of the client succeeding on liability;
(b) the likely amount of the damages;
(c) the length of time it will take for the case to reach trial;
(d) the number of hours the solicitor is likely to have to spend on the case.
Should also inform successs fee
Damages-based agreements
-only if client successful, amount linked to level of compensation/damages obtained.
Defined as
an agreement between a person providing advocacy services, litigation services or
claims management services and the recipient of those services which provides that—
(i) the recipient is to make a payment to the person providing the services if the recipient
obtains a specified financial benefit in connection with the matter in relation to which the
services are provided, and
(ii) the amount of that payment is to be determined by reference to the amount of the
financial benefit obtained.
Solicitors fee agreed percentage of compensation received.
Non counter-claiming defendant cannot enter into arrangement.
Recover % of damages. Amount paid by client will be net of any cost payable by opponent.
If loses not liable for costs but may be liable for disbursements and paying opponents cost. ATE insurance may be appropriate.
Cannot be more than 50% including VAT. Inclusive of fees but not disbursements. Does not apply to appeals.
personal injury 25%.
Employment 35%.
Must meet requirements of s58AA(4) Courts and Legal Services Act 1990 and Damages-based agreements regulations 2013. Must be made in writing and specify proceedings to which agreement relates, when fee payable and fee of level agreed.
Can be adjudged unenforceable.
Still enforceable in early settlement or early termination by client.
Legal expenses insurance
Before the event (BTE)
Cover payment of fees
Part of household or motor, can be bought separately.
Solicitor at first meeting should ask about insurance.
Insurer may not accept if not good prospect of success (50% chance).
After the event (ATE)
Not family law.
Usually liability for disbursements and opponents costs.
Must be confident (60%).
Premium on strength of case.
Staged premium where additional instalments paid if case continues beyond defined stages.
Premium not recoverable.
Remember Financial Services and Markets Act 2000
Third party funding
no other connection agree to fund.
Valid in absence of impropriety or wrongdoing
Take fee from money recovered at end of case.
Can also be for defendant is substantial counter-claim.
Good chance of success (60%).
Do not take on when litigant left with less than 50%
What is covered depends on terms of agreement, Common to only cover part.
Potential liability - costs in discretion of the court.
Conflict of interest and confidentially with documents to funder must be adhered to.
Legal aid
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Must have contract with legal aid agency.
Subject to annual audit.
Firms can still decline.
If does not undertake but client is legible, tell client to go elsewhere.
Must tell at outset.
Must inform court and other parties.
Must inform Legal Aid Agency if client acts unreasonably. Overrides confidentiality.
Civil legal aid
Controlled - solicitor chooses
Licensed - agency
Legal help - basic advice and limited steps.
Help at court - advocacy, advice and assistance
Legal representation - conduct of case up to and including representation
Licensed work, need to apply to agency.
Investigative (merits of case) or full work.
Will place restrictions, if need more fees solicitor applies for amendment of certification.
Can obtained on emergency basis.
Not availing for negligence for persona injury, divorced and family disputes about children.
Not out of context arising out of business.
Not available for cases that could be financed out of a CFA.
Available for clients facing homelessness, family cases where client victim of domestic abuse, discrimination, immigration and care proceedings.
Even if outside scope can obtain if circumstances exceptional
If established above are they eligible?
Merits test;
Sufficient benefit to client having regard to circumstances of the case (less than 50%).
Balance damages against cost.
Non-monetary benefits gained justify the cost.
Other funding available plays a factor.
Means test;
Capital limit - £8,000
Benefits automatically qualifies.
For other clients gross income over £2,657. Deductiosn made to arrive at disposable income.
Only qualify if less than £733.
If over, may order contributions to cost.
If capital over make capital contribution.
Statutory charge - benefits financially may be used as repayment.
Wholly or partly successful in proceedings.
First recover money paid on cost order
Second if shortfall, retain contributions paid
Third still deficit any money recovered or preserved in proceedings applied to make up shortfall.
Solicitor required to pass money payable to client under court order to agency. Payable immediately unless home (interest applied sold later). Protected by registration against the property.
Client fully informed and reminded of cost periodically.
Criminal legal aid
Advice at police station - solicitor. Receive single feed fee.
Duty solicitor - rota to attend mag court. Claim costs in attending court from Advocacy Assistance (Court Duty Solicitor) Scheme.
Cannot refuse intrustcion on basis it would be unremunerative.
Application for legal aid;
Interest of justice test -
(a) whether the individual would, if any matter arising in the proceedings is decided
against them, be likely to lose their liberty or livelihood or suffer serious damage to their
reputation;
(b) whether the determination of any matter arising in the proceedings may involve
consideration of a substantial question of law;
(c) whether the individual may be unable to understand the proceedings or to state their
own case;
(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination
of witnesses on behalf of the individual; and
(e) whether it is in the interests of another person that the individual be represented.
Some other reason. More serious more likely. If under 18 and in Crown automatically met.
Means test -
under 18 and on benefits automatic
All other submit details of finances.
Adjusted income
Run rough test first according to partners and children. Middle ground necessitates full investigation, others ruled out on other end of spectrum.
£12,475 or less - crown and mag eligible
more than £12,475 less than £22,325;
Full means test in both
£22,325 and above - not eligible for mag, crown full means yes
Full means test adjust for disposable income.
Mag court - £3,398 or less.
Crown - £3,398 - £37.500. May determine make some contribution towards fees.
Representation order -
if successful, solicitor may start incurring legal costs on client’s behalf.
Can be extended e.g. for appeal.
Crown interest of justice automatically satisfied.
