What is a CFA?

The potential cost of legalproceedings can be one of the biggest concerns for someone considering a claim.

This can be particularly relevantin contentious probate and inheritance disputes. You may believe that you areentitled to a share of an estate, that a Will should be challenged or thatmoney or property was wrongly transferred before someone died, but the assetsthemselves may remain tied up in the estate.

One possible way of funding aclaim is through a Conditional Fee Agreement (CFA).

You may have heard a CFAdescribed as a “no win, no fee” agreement. Although that is a usefulshorthand, it does not tell the whole story.

At DJF Solicitors, webelieve clients should understand from the outset how their case will befunded, what they may have to pay and what financial risks remain.

What does CFA mean?

It is an agreement between asolicitor and their client under which the solicitor's entitlement to some orall of their fees is dependent upon the outcome of the case.

In simple terms, the solicitoragrees to take some of the financial risk of pursuing the claim.

The precise terms of a CFA canvary, so it is important to understand the particular agreement being offeredto you.

Is a CFA the same as “no win,no fee”?

CFAs are frequently called “nowin, no fee” agreements, but clients should be careful about assuming thismeans there can never be anything to pay if a case is unsuccessful.

A CFA primarily deals with thefees charged by your solicitor.

There are other costs associatedwith litigation which may fall outside that arrangement.

The terms of the CFA shouldtherefore be considered carefully before proceedings are started.

What is a success fee?

Where a CFA provides for asuccess fee, this is an additional fee which becomes payable to the solicitorif the case succeeds in accordance with the definition of success containedwithin the agreement.

The success fee reflects the riskthe solicitor has taken by making some or all of their fees dependent upon theoutcome of the case.

Before entering into a CFA, youshould be told how the success fee operates and how it may affect the amountyou ultimately receive from your claim.

The precise arrangement willdepend upon the CFA offered in your individual case.

What are disbursements?

Disbursements are expensesincurred in connection with your case which are payable to third parties.

They are different from theprofessional fees charged by your solicitor.

Depending upon the nature of thedispute, disbursements can include:

• Court fees
• Barristers' fees
• Expert witness fees
• Medical record charges
• Land Registry fees
• Probate documents and searches
• Specialist reports
• Other third-party expenses required to pursue the case

Clients should expect toremain liable for disbursements unless DJF Solicitors expressly agreesotherwise in writing.

This means that even if yoursolicitor's fees are being dealt with under a CFA, you may still be required tofund expenses needed to progress the case.

Where possible, we will explainanticipated disbursements before they are incurred so that you understand thelikely expenditure.

What happens if I win my case?

If your case succeeds, fees willbecome payable in accordance with the terms of the CFA.

Depending upon the circumstances,you may also be able to recover a proportion of your legal costs from theopposing party.

However, clients should notassume that all legal costs will automatically be recovered from the otherside.

There can be a difference betweenthe amount you are required to pay your solicitor and the amount recoverablefrom another party.

Any applicable success fee willalso be dealt with in accordance with the CFA.

We will explain the proposedarrangement before you enter into it so that you can make an informed decision.

Could I have to pay the otherside's costs?

Potentially.

A CFA with your own solicitordoes not automatically protect you against every financial risk associated withcourt proceedings.

Civil litigation can involve therisk of being ordered to pay some or all of another party's legal costs.

The costs position can dependupon what happens during the case, any settlement offers made, the conduct ofthe parties and the eventual court order.

These risks should be consideredbefore proceedings are issued and kept under review as the case progresses.

What is After the Eventinsurance?

In some cases, After the Event(ATE) insurance may be available.

ATE insurance is a separateproduct from a CFA. Depending upon the policy, it may provide protectionagainst certain litigation risks, potentially including specified disbursementsor adverse costs.

It is not automatically availableor appropriate for every claim.

Policies have their own terms,exclusions and premiums, and we will discuss ATE insurance with you where it isrelevant to your particular case.

Does DJF Solicitors offer CFAsfor contentious probate claims?

Yes, we may offer Conditional Fee Agreements in appropriate cases.

However, we cannot offer a CFAfor every dispute.

Before agreeing to act under aCFA, we need to assess the case carefully.

We may consider:

• The legal merits of the proposed claim
• The strength of the available evidence
• The value of the claim
• The likely legal costs
• Whether those costs are proportionate to the amount     in dispute
• The likely response from the opposing party
• The prospects of recovering money or property if     the claim succeeds
• The overall litigation and costs risks

A claim may have reasonable legalprospects but still be unsuitable for CFA funding if the likely costs aredisproportionate to its value.

We may therefore need documentsand further information before deciding whether a CFA can be offered.

What types of contentiousprobate claims could potentially be funded by a CFA?

Subject to an individualassessment, we may consider CFA funding for certain:

• Will challenges
• Inheritance Act 1975 claims
• Proprietary estoppel claims
• Lifetime gift disputes
• Beneficiary disputes
• Estate and probate disputes
• Other contentious probate claims

The availability and terms of aCFA will always depend upon the individual case.

Why do we assess the casefirst?

When a solicitor acts under aCFA, the firm accepts some of the financial risk associated with pursuing theclaim.

We therefore need to understandthe evidence, legal merits and likely financial outcome.

This assessment is also importantfor you.

Litigation should not be pursuedsimply because a CFA may be available. A claim should have a sensible legal andcommercial basis.

Our objective is to give you arealistic assessment of your position so that you can make an informed decisionabout whether to proceed.

Free 15-minute Initial Consultation

If you believe you may have acontentious probate or inheritance claim but are concerned about how you willfund it, speak to our team.

DJF Solicitors offers a free 15-minute initial consultation to assess your case and discuss the potentialnext steps.

If the case appears suitable, wecan discuss the available funding options and whether we are able to offer aConditional Fee Agreement.

Please remember that a CFA doesnot necessarily mean that you will have nothing to pay. In particular, clientsmay remain responsible for disbursements and there can be other costs risksassociated with litigation. We will explain the proposed funding arrangementbefore you decide whether to proceed.
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Speak to DJF Solicitors
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DJF Solicitors is a national lawfirm with offices across England, advising clients in Bristol, London andthroughout the country.

If you have an inheritance or contentious probate dispute and would like us to assess your case, take advantage of our free 15-minute initial consultation.

Make an enquiry here and a member of our contentious probate team will contact you. Call us today on 0203 504 9138, or email us at info@djfsolicitors.co.uk to schedule your free initial telephone consultation.

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Article by Nicole Nedungadi, Private Client Solicitor at DJF Solicitors