It is going to be much more difficult to find Legal Advisors who are prepared to act on a "no win no fee" basis from (it is anticipated) April 2012, when the rules regarding the recovery of success fees and ATE premiums are highly likely to change on the enactment of the Legal Aid Sentencing and Punishment of Offenders Bill.
At present, these fees and premiums are (on a successful conclusion of the claim) recoverable from the defendant. There is a very real risk that they will become unrecoverable in a very short time scale (i.e. by April 2012) and which will mean that they will have to be paid by the successful claimant.
Such payments will be made from the damages awarded to the claimant for the negligence of the defendant and, as such, the claimant will receive less than s/he could receive under the current regime.
Alternatively, the claimant may (recognising this detrimental effect on any damages awarded) seek to limit the success fee of his legal advisors and which, in turn, may discourage those legal advisors from acting in only the most meritorious of cases.
It is far more likely that it is more advantageous for the claimant and legal advisors to pursue a professional negligence claim under the current regime than what is anticipated will be the change regime from April 2012.
All potential claimants should, therefore, act promptly in obtaining legal advice as to the merits of any claims they think they may have so that if (on advice) it is decided to pursue those claims, they are pursued (and a Conditional Fee Agreement entered into) before the anticipated regime change.
It is not proposed that the Act is to be retrospective, so provided the Conditional Fee Agreement is entered into before the Bill is enacted, you will be able to recover success fees and premiums from the unsuccessful defendant
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