Generally speaking in personal injury claims, the losing party pays the winning party’s reasonable legal costs (“basic charges”) and expenses (“disbursements”) such as the medical expert’s report fees, court fees, barrister’s fees etc. This is dependent upon the type and value of the successful claim. The legal costs paid by the losing party will either be ‘fixed costs’ or ‘assessed costs’ based on how much time has been spent dealing with the claim. Whether ‘fixed costs’ or ‘assessed costs’ are recoverable, they are both determined in accordance with the Civil Procedure Rules (CPR).
As a general rule, if you lose your claim the rule referred to as ‘qualified one way costs shifting’ (“QOCS”) applies. The application of QOCS protects you from having to pay your opponents legal costs. QOCS ensures that if a Court makes a costs order against you, it can be enforced only up to the total value of any compensation and costs you are awarded by the Court. If these legal costs are higher than your compensation award you do not pay the balance. Therefore, as a general rule if you lose the claim and you are not awarded any compensation, no legal costs are payable by you.
Please note that QOCS applies to claims involving personal injury and this protection can be lost if:
- The Court finds that you have been fundamentally dishonest about any aspect of your claim
- The case has been struck out because the claim discloses no reasonable cause of action
- The claim is otherwise an abuse of the court’s process
You fail to beat your opponents formal offer in settlement of an issue in the case known as a Part 36 Offer
Funding Options For Your Legal Case Work
Conditional Fee Agreements
Conditional Fee Agreements (“CFA”) are one of the main ways to pay for your legal costs in a personal injury claim.
Under a CFA, as a general rule you will not be liable for the basic charges for the work done by Emaari Legal on your case on an hourly rate if you do not win your case. This is sometimes referred to as a “no win – no fee” funding arrangement.
You may be charged an additional fee over and above our basic charges, if you win your case. This is called the “success fee”. The success fee applies, amongst other reasons, to reflect the fact that Emaari Legal may not be paid if the case is lost, that payment of your legal costs is being deferred until the end of the claim and that Emaari Legal will fund the payment of any expenses and disbursements payable during your claim.
The success fee will be calculated as a percentage of our basic charges and it will be capped at no more than 25% of any compensation we recover on your behalf, but excluding compensation for future losses and recoverable DWP state benefits.
If you win, the success fee is not recoverable from the opponent and this is your responsibility since the introduction of new rules, implemented by the Government in 2013.
If your claim is funded by way of a CFA and you win your claim, you will be liable for the following:
- Our basic charges (usually the majority is recovered from your opponent with you being responsible for any short fall)
- The success fee
- The expenses and disbursements that we have incurred on your behalf (usually the majority of these are paid by your opponent with you only being responsible for any unrecovered disbursements)
- The After The Event Legal Expenses Insurance Policy Premium (see below for details)
- If you lose the case then you could be liable for:
- Any expenses and disbursements Emaari Legal have incurred on your behalf if you have opted not to take out any After The Event Legal Expenses Insurance. However, as stated above, as a general rule you will not be liable for our basic charges.
- Your opponent’s legal costs subject to the one way costs shifting rules set out above.
If you are funding your claim via a CFA, we recommend that you take out an insurance policy at the outset of your claim to protect you in the event your claim fails against the risk of having to pay your opponent’s legal costs and any expenses and paying your own expenses and disbursements or in the event that you fail to beat a Part 36 offer made in your case making you liable for legal costs. This is called After The Event Legal Expenses Insurance (“ATE”). We can recommend an ATE policy. A premium is payable for the ATE, by you, but usually at the conclusion of the claim and only if you win. The premium is self-insured and you do not pay the premium if you lose, but the ATE policy will still pay your opponents legal costs and your own expenses and disbursements if you lose. We can supply further information upon request.
Damages Based Agreements (Known As DBAs)
You may have the option to pursue your claim for personal injury and associated losses via a Damages Based Agreement, a type of ‘no win, no fee’ agreement, whereby on your claim being successful instead of charging you a “success fee” your instructed solicitors would charge you a “Contingency Fee” of up to 25% of your compensation inclusive of VAT in respect of their basic charges giving credit to you for the basic charges and disbursements received by them from your opponent. However, Emaari Legal do not operate claims for personal injury on a Damages Based Agreement and if you wish to pursue your claim on this basis you will need to instruct another firm of solicitors.
Other Funding Options
Other forms of funding can include Before The Event Legal Expenses Insurance (“BTE”) which you may have already taken out as part of an insurance policy, typically, with your home or motor insurance or provided by your bank or credit card provider. Some clients have the benefit of free advice and representation funded by their Trade Union. In addition you have the option to pay your legal costs under a private retainer, although this is not common practice amongst personal injury claimants.
Emaari Legal will discuss with you all forms of funding at the outset of your claim.
Complaints Policy
Details of our complaints policy are available on this website.