Beware the offer of ‘No win – no fee’!

By Cian O'Carroll, Friday, 2nd January 2015 | 0 comments
Filed under: Medical Negligence, Personal Injuries, Road Traffic Accidents.

Legal fees – two small words with the power to frighten a multitude and damage the important relationship of trust between client and solicitor.

When I started out in legal practice there were few rules on what could or could not be charged, there was still a general feeling among solicitors that it was unseemly to discuss fees at the first consultation with a new client and sadly back then the practice of charging clients more than the work merited was not only commonplace; I would say that in personal injury litigation it was the norm.  Then in 1994, a full 20 years ago, a law was enacted, one we generally refer to as section 68, that requires that in every new instruction a letter is given to the client clearly setting out either what the fee will be in any transaction or if that cannot be ascertained from the outset, how the fee will be calculated. More importantly a prohibition was placed on solicitors acting in what are called ‘contentious matters’ from charging fees as a percentage of the value of the case or from deducting such monies from a client’s damages.  The law was aimed at stamping out the widespread practice of charging a 10% fee from a client in addition to the legal fees recovered from the other side in these ‘contentions matters’.

The new law was badly needed and while I do not think it had an immediate effect, over the course of a few years the practice of charging such percentage fees dwindled greatly.  From my experience of talking to clients however, it did not stop and various methods of explaining such fees have been offered, then and since, by some solicitors. Sometimes people were told that the work was of a specialist nature and so justified these additional fees or perhaps there was some urgency or special risk to the work and on that basis a fee would be charged. I cannot say that such excuses were always spurious but from my experience of medical negligence and personal injury litigation, I would need some convincing that these types of charges are ever justified.  Of all these excuses, the most spurious I think is the argument that the solicitor is taking on the risk that if the case is not successful, he or she will not get paid and therefore when they win, they should be entitled to an extra fee. It is known as ‘no win, no fee’ or ‘no foal, no fee’ and everyone is familiar with the expression. I hate it. Most clients ask me the question – do I work on a ‘no win, no fee’ basis? I am mindful that to most people, anything less than a hearty endorsement of this fee charging practice will be greeted with fear, apprehension and quite likely a hasty retreat from my office to seek out some other firm to handle their case.

The Law Society, our regulatory body, have forbidden the use of the expression or similar words from any advertising by a solicitor – and rightly so in my view. The problem is that if a solicitor makes a virtue of taking on a case and not charging a fee should the case be lost, in the first place it distracts from the essential task of identifying whether the client has a good case to bring in the first place and thereby could encourage unworthy cases to be taken. In the second place, once the client ‘buys into’ the idea that the solicitor is assuming a risk in the case, it seems to follow quite naturally that when they win, some fee should be paid to the solicitor from the damages or compensation paid.  But why should you pay more fees just because your solicitor may have lost some other case in which they failed to get paid? After all, in personal injury and medical negligence cases, and any other contentious type of case, when the client wins their case, they also win their legal fees – or ‘costs’ as we generally refer to them. Those costs are calculated having regard to the difficulty of the case and the time required to bring it to a successful outcome. So where is the need for a bonus or top-up fee from the client’s compensation if it is not to make up for other cases that the client had nothing to do with. 

I should say that there is one element of the work we do in non-medical negligence personal injury litigation that is not paid for by the losing side and that is the work relating to the Injuries Board. There will also be modest elements of expert report fees and court attendance fees for those experts that the other side may not be liable and it is for your solicitor to explain all that to you. It remains however my view that where possible, as is my practice, every effort should be made to ensure that the client who has suffered injury or harm and is successful in their case should not pay any fee for the work done in bringing that case to a successful conclusion. I believe that both the law and the Law Society would endorse that practice.  As for fees being charged if a case ends in failure, well I can only speak for my own practice and I would never wish to add to a client’s woes by charging fees for my work and the barristers I instruct take a similar view but there are always financial consequences to losing a court case. Anyway, the issue should not arise except on rare occasion if the proper work is carefully undertaken from the outset to ensure that the client has a strong case that has a good prospect of success. That after all is the essence of the trust that a client places in us.

Cian O’Carroll Solicitors, A Medical Negligence & Personal Injury Law Firm. FREEPHONE 1-800 60 70 80 | WWW.TIPPLAW.COM

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