Did your Lawyer/Solicitor fail to discuss litigation funding?

If your claim/case was not successful and you have incurred significant legal fees (costs) only to be told by your Solicitor that you now have to pay those costs, you may have a claim against your former Solicitors in negligence.

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This can occur in any type of contentious legal work involving litigation. You may have entered into a Conditional fee agreement (CFA) or be paying your Solicitor privately on account. These methods of funding a claim only cover the cost of your own legal fees. However what about the other sides (defendant’s) costs and your own disbursements such as court fees, expert’s reports, Barrister fees etc. These will not be covered by the CFA.

Failure to give adequate advice about After The Event Insurance (ATE) which may have covered the cost of the failed litigation, is likely to be a breach of the Solicitors code of professional conduct (1.2 outcomes). The Solicitor must advise their clients that there is a risk of paying somebody else’s legal fees, they must explain the implications of the CFA and the option to purchase ATE insurance (indicative behavior rule 1.13 to 1.17).

If the Solicitor failed to give this advice, they may be negligent and any claim made by the defendant for their legal costs against you, may be potentially recovered from the Solicitor conducting the matter on your behalf, if it can be shown that no efforts had been made to protect your costs position by providing you with sufficient and informed advice on litigation funding.

Examples of these negligent practices are:

  • Failure to explain the benefits and limits of an After the Event (ATE) insurance policy with regard to third party costs protection
  • Failure to take out an After the Event insurance policy at all
  • Failure to insure the full litigation risk (resulting in you being liable for the shortfall)
  • If you are unsuccessful with your claim the Solicitor is requesting payment for disbursements such as medical report fees, court fees etc. without ever telling you that you may become liable for these expenses

Did you lose your chance of pursing a claim due to failure to advise on litigation funding?
You may have decided not to pursue your potential claim due to the risk of you potentially having to pay the legal costs of the other side (defendant). In such circumstances you may have a potential claim for not bringing the claim against the intended initial defendant against your former Solicitors. If they failed to discuss with you funding options such as an ATE insurance policy which may have covered the litigation costs risk and also conditional fee agreements.

You may have a claim in negligence against your Solicitors if you can show that your initial claim had a reasonable prospect of success against the initial intended defendant to the action.

For further discussion and advice please contact our Solicitors to consider whether you have a potential claim in negligence.

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