If you think your solicitor might have made a mistake that has caused you a loss, it can be a daunting prospect considering bringing a claim against them and you might have no obvious way of funding a claim.
So, is it possible to bring a claim in these circumstances on a “no win, no fee” basis?
I certainly consider offering clients this basis for funding such a claim here at Ibbotson Brady Solicitors Limited. However, these claims are rarely straightforward.
First of all, I have to establish whether there are any other means of funding the case, such as through trade union funding, legal expenses insurance, privately paying or third party funding (in other words, somebody paying the legal fees for you).
Next, I have to establish whether there are sufficient merits to warrant considering acting on a “no win, no fee” basis. It is often appropriate to agree to take limited steps at the beginning, to enable the merits of the claim to be considered further, for example, by agreeing to proceed only to the obtaining and consideration of the original solicitors’ file on a “no win, no fee” basis. At that point I can take stock, see if the case looks strong and consider future funding.
These cases are notoriously difficult to win. They are always against sophisticated and tenacious professional opponents, with similarly sophisticated and tenacious insurers. Professional reputations are at stake and so they are almost always hefty “multi-track claims” (big and complex) and often need court proceedings. They demand a lot of time and attention and, if done correctly, ought to be conducted by a Grade A lawyer (very senior).
I am a Grade A lawyer.
It is a bald fact that bringing and, hopefully, succeeding with a professional negligence claim is never as good as the original solicitors having got things right in the first place. If the claim is a money claim, then even in successful claims the “return” will not usually be as good as having won in the first place would have been. My clients have to manage their expectations accordingly.
Bearing all of the above points in mind, the factors that I tell my clients that they ought to consider before signing up to a “no win, no fee” agreement to bring a professional negligence claim include:
- If the claim fails you will not have to pay me
- I will consider on a case by case basis promising that if you win your claim you will keep at least a certain percentage of your damages, so that it is worthwhile you proceeding
- I will discuss with you at all appropriate stages and advise upon whether any suitable insurance is needed in your claim, often referred to as “after the event insurance” or ATE, to protect you from having to pay your opponent’s costs. In my experience of professional negligence claims, these policies are almost always bespoke and usually no meaningful proposal can even be submitted for such insurance until all of the facts are known. Policies are usually quite expensive due to the nature of these claims, but particular consideration ought to be given to this, especially before any proceedings are issued.
- In our agreements there is a 14 day cooling off period
This is only a very basic summary of the principles that I consider. Every professional negligence case is unique and there is no substitute for reading and considering the “conditional fee agreement” (“no win, no fee”) itself with me.
Ibbotson Brady Solicitors Ltd, Park House, Park Square West, Leeds, LS1 2PW
Telephone 0113 3663022