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Thorneycroft News for April 2013

FAQ

11th April 2013

FAQ’s on Funding of litigation

  • “Why am I having to lose up to a quarter of my damages”

    • The insurance industry persuaded the Government that successful Claimants should have to pay their own success fees when instructing solicitors on a no win no fee basis, capped at 25% of damages. We on the Claimant side lobbied hard against these proposals, believing that the losing insurers should continue to pay the success fee themselves, but the Government ignored our arguments and the applicable change to the law came into effect from April 1st 2013. What this means in practical terms is that, as your success fee and unrecovered base costs will almost always exceed 25% of damages, then this is the amount that will have to be deducted from recovered damages to go towards your legal fees at the successful conclusion of your case.
  • “The Insurers seem to be doing very well from the rule changes, do they contain any good news for me as an innocent claimant?”

    • General damages for Personal Injury are being increased by 10% to offset the loss to you. You are still able to instruct an experienced Personal Injury specialist litigator from our firm to fight the insurers upon your behalf, and advise you upon the appropriate level of settlement, as well as paying upon your behalf for the disbursements that you will inevitably incur when pursuing your claim, such as Medical report and Court fees.
  • “Do I have to pay any legal costs if I lose, and can I take out insurance against that risk”

    • If you instruct us on a no win no fee agreement then as long as you follow our advice and don’t mislead or misinform us, you don’t have to pay anything towards our own fees if you lose the case at trial. You can be held liable for the other side’s legal fees however, up to a maximum of the level of damages you are awarded (which would leave you with nothing) if you refuse an offer in settlement of your claim, and that offer is the same as or more than the sum ultimately  allowed by the judge at court. We strongly recommend that you take out ATE (After The Event) legal expense insurance against this risk, in the event that you don’t already have full legal expense cover. The premiums tend to be reasonable if taken out at the point of instruction and are deferred to the conclusion of your claim, so there’s no payment up front just a deduction from your damages.
  • “Are there alternative methods of funding my claim?”

    • If you do not have full legal expenses cover in place already then we would always prefer to act for you on a conditional fee basis. Other firms may offer different funding arrangements but this is our standard approach for all our clients as it allows us to provide you with a consistent high standard of service.

 

FAQ’s on After the event insurance

  • “Why do I need ATE insurance?”

    • You need ATE insurance to pay for disbursements and the other side’s costs in the event that your claim fails.
  • “Don’t I benefit from QOCS protection?”

    • You will benefit from QOCS protection providing the third party are prepared to accept that they are responsible for your injury. However, even if they do accept they are responsible, they may not accept that your injuries are as severe as you say they are. If they don’t they will not settle the case and so we will need to go trial to prove your claim. If this happens the judge will need to make a decision and you could lose your case. You may lose the QOCS protection meaning that you will need to pay for the other sides costs.

      QOCS protection doesn’t apply if there is dispute over the costs of repairs to your vehicle or credit car hire, so should we need to go to court to recover the costs, should we lose, the ATE policy will cover the costs of the other side.

  • “What will happen if the other side make an offer and it’s not acceptable?”

    • We will do all we can to maximise damages and this may mean that we need to go to court. If we beat their offer then it’s not a problem, but if we don’t you will be liable for the other sides costs up to the amount of their offer, meaning that you could end up with nothing, unless you have ATE insurance that will pay the other sides costs.
  • “Am I still liable for the ATE premium if my case is lost or if you decide to drop the case at some stage because you don’t think I have a reasonable case?”

    • You only pay the premium if your case is successful, but the insurance will still cover all the costs if your case is lost or we decide that your case no longer has reasonable prospects of succeeding.
  • “My claim is for clinical negligence, so isn’t the premium recoverable from the other side?”

    • Only partly. The policy covers your disbursements and the other sides costs, but the only part that’s recoverable from the other side is the element that relates to your disbursements. The part of the premium that that pays for the other sides costs in your case is lost will be deducted from your damages at the conclusion of your case and providing it is successful.