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At Boyes Turner, for clients who suffer with mesothelioma, all of their legal expenses (called 'costs') on successful conclusion are paid for by the guilty defendant. We do not take deductions from the compensation awarded to our mesothelioma clients whether the claim is finished before or after their death and we do not retain any of their compensation to cover costs or disbursements accrued.
For asbestos disease clients who do not suffer with mesothelioma, the government changed the rules for 'no win, no fee' (called a Conditional Fee Agreement or CFA) clients from 1 April 2013.
For cases started on or after that date, the government changed the way that solicitors acting for injured clients can be paid. These changes did not affect existing clients of the firm whose cases were started before that date.
For cases started up to 31 March 2013, a solicitor acting on a CFA could promise a client that there would be no deductions from their compensation payments to pay for costs at all. That is because the success fee and the insurance policy was paid for by the defendant if the claim was successful. This meant that the defendant paid all of the client's costs so that all of the resulting compensation could be paid to the client in full. Boyes Turner always ensured that all of its CFA clients retained their compensation in full.
Now however, other than for mesothelioma clients, the losing defendant no longer has to pay the client's success fee or insurance premium so these costs have to come out of the compensation received. The solicitor still needs a success fee to remain in business and to cover the losses in unsuccessful claims. The client also still needs insurance to cover the risk of paying their own disbursements and defendant's costs if, for example, a defendant's offer is refused and not beaten at trial.
Unfortunately, whilst the government was aware that those deductions would potentially cause hardship for many clients, the changes were nonetheless still made.
When a solicitor takes on a CFA case, they do not know if they are going to win or not. Some asbestos cases are very uncertain at the start and require considerable historical research so the solicitor is taking a genuine risk that the claim might not be won. If the claim is not successful then the solicitor gets paid nothing at all. To compensate the solicitor for that risk, in successful cases, a success fee is paid to offset the losses of those cases that are lost.
A solicitor needs to take out insurance for the client to cover the possibility that the claim might be lost. If it is lost, the client is legally liable for his own disbursements (medical records, expert fees, court fees and so on) and can in certain circumstances be liable for the successful defendant's costs as well. That risk is covered by insurance, protecting the client from the risk of having to pay extensive costs.
Clients have to pay nothing up front and will only pay anything at all if they win their case. The case is still "no win no fee" so if the case is lost the client still pays nothing. If it is lost, the insurance will pick up that cost and the solicitor will simply not be paid for the work done.
There is a cap on the amount that can be taken from the client's compensation to cover the success fee and insurance premium. It means that clients should receive at least 75% of their compensation. This is helpful to the client in most circumstances but can cause a problem for cases that are complex and of lower value as there might not be sufficient funds to cover the cost of the success fee and insurance premium. In those circumstances, the client might not be able to find a solicitor to take the case or else a deduction of more than 25% will have to be taken.
The likelihood is that most will have to, to stay in business unless they decide only to take straightforward cases. If a client has a straightforward claim or the solicitor has a volume of cases from a single source, the solicitor might waive their success fee. However, most insurance arrangements are taken out on the basis that all cases are taken into the insurance arrangement. Otherwise if the insurance arrangement only covers the difficult cases, the premium would be unaffordable or might not be available at all. So even in straightforward claims, the client is very likely to have to pay an insurance premium out of their compensation unless the solicitor is willing to pay it for them which would be unusual. For almost all cases, the client will most likely have to pay both a success fee and an insurance premium. Different solicitors will have different policies on these issues.
Remember you only pay if you win your case. If you lose it you pay nothing. If you are a mesothelioma client, you pay nothing. How much you pay when you win your non mesothelioma asbestos claim depends on the cost of the insurance premium (which will vary) and the level of the success fee (which will depend on how likely the case is to succeed, its complexity, its value and likely duration). Remember that the maximum payable for success fees and insurance has been capped by the government to a level which the government considers is fair.
We will advise you of level of likely costs when we discuss the case with you initially as it will vary from case to case.
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