We Take Calculated Risks

We pride ourselves on being an entrepreneurial law firm in that, in a number of areas, we are prepared to take calculated risks for the mutual benefit of the firm and our clients. We display this entrepreneurial spirit in a numerous different ways, including the wide variety of options on charging and sources of funding that we offer clients involved in contentious matters. Indeed, as can be seen from our website, the Commercial Litigation department at Healys offers a broad range of charging/funding options, in addition to the traditional charging of clients on a time spent basis.

We are well experienced in acting for clients under contingency fee arrangements, conditional fee agreements, discounted conditional fee agreements and fixed fees and with the benefit of third party funding, before the event insurance and after the event insurance. For example, we have recently successfully acted for a client who was unable to obtain legal representation in a professional negligence claim against his former solicitor – until he contacted us. In a claim which our client had been advised had little merit, we were able to obtain, without commencing legal proceedings and on a contingency basis, damages in excess of £250,000.

However, our ability to act on behalf of clients under contingency fee arrangements is severely restricted by statute, which prohibits solicitors in the jurisdiction of England & Wales from acting in such a way once a contentious matter becomes the subject of court, arbitration or other types of proceedings. Thus, while we can and do act successfully for clients on a contingency basis where we can achieve the client’s desired ends through correspondence/negotiation and without the need to start court or other proceedings, it is not always possible to achieve the necessary result without the commencement of formal proceedings. In such cases the law prohibits us from continuing to act under a contingency fee arrangement. This is in contrast with other jurisdictions such as the United States, where it is a common form of litigation funding.

We predict that the rules on contingency fee arrangements will be relaxed to allow such arrangements to continue for disputes that become the subject of formal proceedings, but with measures to prevent abuse and excessive reward for the legal advisors. Excess often appears to be the case in the United States where (unlike in England & Wales) the loser does not pay the reasonable costs of the winner in the litigation. With our costs regime, the loser can be expected to pay the reasonable costs of the winner, which acts as a natural brake on the amount of legal fees. The Canadian system adopts a hybrid regime of contingency fees, but where the “loser pays” rule operates. The Law Society Gazette recently reported that the legal profession is divided on whether or not contingency fees should be an option to fund litigation, accompanied by regulation to avoid abuse and unfair prejudice to the Defendant. We hope and believe that contingency fees will become an option to fund litigation and hope that this change will take place sooner rather than later.