Costs, Risk and Insurance in Will Dispute Claims – Your Questions Answered
What is no win no fee?
It is a type of contract between the solicitor and the client which means that the solicitor can only charge if the claim is won
Does it mean that to win a claim you have to go all the way to a trial and be successful there?
No absolutely not. Most of our claims for clients are settled before any court proceedings leading to a trial and even if court proceedings are required, before there is a trial.
Is no win no fee a more expensive type of arrangement than a normal paid basis?
No, not under our scheme. Some no win no fee arrangements provided by other solicitors also include an uplift to the normal charging rate if there is a win,
of up to 100%, but we don’t charge this. We record our time in accordance with an agreed hourly rate. There is no extra charge to the client if we win. We can simply charge
Is there any type of case where you can’t or won’t work under a no win no fee arrangement? our time at that point.
There are very few. In general most of the claims we take on for either Claimant or defendant are funded by this arrangement.
How can you be sure you will win in each case?
We can’t be sure until we take on the claim and start asking questions and getting hold of papers.
So you take on cases when you don’t know you can win them?
Clearly the case must appear to be one which has prospects but yes you are correct, we do take on cases where we can’t be certain we will win.
When will you know whether you are likely to be successful?
Very soon after we take on the claim we will find that out. There is a process you go through of setting out your claim, asking questions and asking for papers. It becomes clear during that and very soon after the claim is started whether it can be won
What about those cases where questions are not being answered and papers requested (for instance wills and medical records) are not being provided?
Yes there are occasions where this happens and we are instructed in consequence. The first thing to say is that questions are usually unanswered and access to papers denied, where the other side are likely to have something to hide so that on its own is a good indicator that something is amiss and the client is likely to win. However, where this does happen there are levers we can use to force disclosure, in particular something called “pre action disclosure”. This is a type of limited court claim where the only issue is indeed the provision of papers. It is relatively straight forward and allows the applicant to obtain a court order forcing disclosure. In short, there is little opportunity to hide anything and ultimately, this will help both sides to reach an agreement.
What then happens to the cases you can’t win?
If we can’t win, then obviously we can’t continue to pursue the claim and it will have to be stopped. However under the terms of the no win no fee arrangement, we can’t charge.
If you win a case, who pays your costs?
The most common scenario is that our costs are met from the estate.
What risks are there (in particular if you can’t or don’t win a claim is there anything to be paid to the other party)
What happens when you stop a claim because you can’t win? Is there anything to pay to the otherside?
The answer is NO! As I have already said, the vast majority of these cases will never see the inside of a court and those that do, as I say, will be of the smallest percentage. In general there will be an agreement which resolves the claim or they will stop.
Is there no risk at all then, for even those that go all the way to a trial and are lost?
Clearly if your claim is one of the small number that go all the way to a trial and are lost, there is a risk you could be ordered to pay the other side’s costs. However, we do not recommend that you engage in court proceedings unless you have insurance against the risk of losing (and of paying the otherside’s costs). If against our advice, you have proceeded without such insurance, then clearly you are going to be at risk.
How do you get this insurance? Are you guaranteed to get it in all cases?
You will be able to get this type of insurance if you have a good chance of winning. We can certainly investigate it for you although we cannot make recommendations in relation to the different insurers or their policy terms. However, this is not something you will need to worry about at the start of any claim because:
a) it is only after the issue and service of court proceedings there is any risk
b) most cases resolve by agreement before any court proceedings are necessary
WHAT WILL I DO THEN IF I CAN’T GET INSURANCE?
If you cannot get insurance then your claim was never going to be strong enough to pursue in the first instance and you would have to stop your claim before you were at risk. At that point, as already mentioned, given we have not “won”, we cannot charge.
Might I have my own insurance anyway?
Yes it is quite common to have legal expenses cover under your household policy which we will investigate for you as a matter of course in which instance there will be no premium to pay (as you have already paid it)
But what if I don’t have legal expenses cover, how will I pay the premium?
If you don’t have your own legal expenses cover and you need insurance, it will be provided on terms that you pay nothing unless and until you have won. Basically it mirrors the way the no win no fee agreement works
How much will I have to pay if I win
We will obtain a number of quotes for you, but in our experience the premiums in these type of claims are likely to exceed £10,000. It follows then that your claim must be of sufficient value to enable you to meet such a premium if you win from your winnings. You will be provided with our advice about that in advance of needing the insurance and accepting it. . However and to be absolutely clear, this premium will not form part of the claim for costs you will make (because if you win the other side will in general be ordered to pay your costs). Your claim then must have sufficient value to warrant bringing and pursuing court proceedings
But what if I lose the claim, will I still have to pay this premium and what about your costs?
As we have said, this type of policy mirrors the way the no win no fee agreement works, so if you lose you will pay nothing. You will only be obliged to pay the premium if you win the claim
By all means contact us for further information concerning the above:
Inspire Law Limited
5 St John’s Lane
London EC1M 4BJH
T: 0203 322 5101
F: 0203 322 5102