No win no fee - is it possible to negotiate the success fee?
Discussion
Hi All
Would you know if you can negotiate success fees with lawyers please? I have a high profile whistleblowing case that is likely to generate a lot of other enquires/ claims and hence income for lawyers. I suspect this is one of reasons the lawyers would be happy to represent me (along with it being a very strong case) They have offered a no win no fee arrangement for 25% success fee
Thanks
24/7
Would you know if you can negotiate success fees with lawyers please? I have a high profile whistleblowing case that is likely to generate a lot of other enquires/ claims and hence income for lawyers. I suspect this is one of reasons the lawyers would be happy to represent me (along with it being a very strong case) They have offered a no win no fee arrangement for 25% success fee
Thanks
24/7
Yes you can negotiate.
You say 25% - do you mean a 25% uplift on their standard fee if you win and recover? Or that their fee will be 25% of whatever you recover?
The former is called a conditional fee agreement. 25% is quite reasonable.
The latter is called a damages based agreement. Whether 25% is reasonable will depend on a range of factors.
You say 25% - do you mean a 25% uplift on their standard fee if you win and recover? Or that their fee will be 25% of whatever you recover?
The former is called a conditional fee agreement. 25% is quite reasonable.
The latter is called a damages based agreement. Whether 25% is reasonable will depend on a range of factors.
Thank you
Blacktails all I know at moment is it's a 25% success fee. I don't have the detail yet but I think it will be a damages based success fee
If my evidence and public disclosure generates 100+ additional claims as an example then surely room for negotiation ?
However they may argue my evidence likely to become public for free if I did not make a claim ,as it is very likely I would be subpoenaed by prosecuting body
Blacktails all I know at moment is it's a 25% success fee. I don't have the detail yet but I think it will be a damages based success fee
If my evidence and public disclosure generates 100+ additional claims as an example then surely room for negotiation ?
However they may argue my evidence likely to become public for free if I did not make a claim ,as it is very likely I would be subpoenaed by prosecuting body
Twentyfour7 said:
Thank you
Blacktails all I know at moment is it's a 25% success fee. I don't have the detail yet but I think it will be a damages based success fee
If my evidence and public disclosure generates 100+ additional claims as an example then surely room for negotiation ?
However they may argue my evidence likely to become public for free if I did not make a claim ,as it is very likely I would be subpoenaed by prosecuting body
There may be scope for negotiation. Blacktails all I know at moment is it's a 25% success fee. I don't have the detail yet but I think it will be a damages based success fee
If my evidence and public disclosure generates 100+ additional claims as an example then surely room for negotiation ?
However they may argue my evidence likely to become public for free if I did not make a claim ,as it is very likely I would be subpoenaed by prosecuting body
Solicitors firms are businesses. They usually charge by time. Take an average case - say by time it would generate them 100k in fees.
Now take your case. Say it’s an average case in terms of the resources that have to be applied to it. They will need the damages to be at least 400k for their 25% to return their 100k in fees on an average case. Now say your case has atypical risks of success. That risk might be built into a higher %. Or it might be reflected in 25% of a bigger potential win value. Those are some of the factors in play when your % gets agreed.
Now tilt the table a bit. Sometimes (yes, really) solicitors do cases for the cause, or for publicity. Then they might be willing to run a case like yours as a loss leader.
But here’s the rub: loss leaders only work if they lead to profitable work. So if acting on your case generated another hundred cases which were risky, low value and required more than average resources, that’s bad business for them. And that means your negotiating position becomes weak.
Lots of factors in play, potentially.
Maybe before you start negotiating you should be aware of what you're negotiating about ....... as Blacktails above has said, 25% could be a success fee (so 25% of the Solicitors cost incurred in handling the case) or it could be that the success fee is more or less than 25% but that the total cost to you will not exceed 25% of the total award of damages and costs.
There's a big difference between the two ..... in a recent PI claim that my MIL made it was an unknown success fee but with a proviso that it wouldn't cost her more than 25% of the damages.
I imagine you could try to negotiate the success fee but I can also imagine the answer you'd get - but trying costs nothing.
There's a big difference between the two ..... in a recent PI claim that my MIL made it was an unknown success fee but with a proviso that it wouldn't cost her more than 25% of the damages.
I imagine you could try to negotiate the success fee but I can also imagine the answer you'd get - but trying costs nothing.
You can certainly ask the question but don't be offended if they say no thanks.
Your case will likely take 9 months plus to get to trial in the Employment Tribunal. Whistleblowing cases are very technical and success is never guaranteed.
Further, the limitation period for claims is typically 3 months so if you win your case, it's likely that anyone else in the same position as you are today will have missed their chance to bring a claim. It's also a common condition of a no win, no fee for the lawyers to have the right to drop your case if you unreasonably refuse an offer of settlement.
For these reasons I'd be surprised if a lawyer will discount their fee based on the possibility of future work but you can certainly ask.
If your case is very strong and likely to be high value you'd be better off paying on an hourly rate basis. Maybe also check if you have home legal expenses insurance as that might cover you.
Your case will likely take 9 months plus to get to trial in the Employment Tribunal. Whistleblowing cases are very technical and success is never guaranteed.
Further, the limitation period for claims is typically 3 months so if you win your case, it's likely that anyone else in the same position as you are today will have missed their chance to bring a claim. It's also a common condition of a no win, no fee for the lawyers to have the right to drop your case if you unreasonably refuse an offer of settlement.
For these reasons I'd be surprised if a lawyer will discount their fee based on the possibility of future work but you can certainly ask.
If your case is very strong and likely to be high value you'd be better off paying on an hourly rate basis. Maybe also check if you have home legal expenses insurance as that might cover you.
A friends brother owns a very large larval practice that does blame / claim work.
Yes you can negotiate if the deal is big enough. They score all deals and to be frank only take winners. They have been doing it for decades and whilst the can't always be 100% right know what they will win and it's value. They have to or they would loose money.
However you are assuming that your offer to them is bigger than their brands ability to attract similar cases.
It is like going to a car dealer and saying I am an influencer give me a discount car as my followers will all now buy one. Well maybe they will. Maybe they won't. Maybe they buy from someone else but if you want a Porsche and love locally they will probably buy from me anyway.
I don't see your position as compelling.
Yes you can negotiate if the deal is big enough. They score all deals and to be frank only take winners. They have been doing it for decades and whilst the can't always be 100% right know what they will win and it's value. They have to or they would loose money.
However you are assuming that your offer to them is bigger than their brands ability to attract similar cases.
It is like going to a car dealer and saying I am an influencer give me a discount car as my followers will all now buy one. Well maybe they will. Maybe they won't. Maybe they buy from someone else but if you want a Porsche and love locally they will probably buy from me anyway.
I don't see your position as compelling.
The short answer is yes - solicitors are in principle always willing to negotiate success fees, whether it's within a Conditional Fee Agreement or a Damages Based Agreement.
But whether they would do so in practice would all depend on their assessment of how lucrative / easy the claim is to win. The bigger the value and the easier the claim the greater the willingness to negotiate, and vice versa.
If it's within a CFA there are now quite a few firms that make a point of not charging any success fee, and assuming the firm is competent this would result in a much better outcome for the claimant.
But whether they would do so in practice would all depend on their assessment of how lucrative / easy the claim is to win. The bigger the value and the easier the claim the greater the willingness to negotiate, and vice versa.
If it's within a CFA there are now quite a few firms that make a point of not charging any success fee, and assuming the firm is competent this would result in a much better outcome for the claimant.
If by high-profile, you mean a company with a big name and public profile, you can be certain that they can probably afford the very best and competent lawyers to defend themselves.
A firm offering a cut-price deal may not be the ideal choice. All things are not equal, you are not buying a 10-year old semi in the Midlands.
A firm offering a cut-price deal may not be the ideal choice. All things are not equal, you are not buying a 10-year old semi in the Midlands.
OP here:
Thank you everyone for your very helpful comments. I have been flat out with work and this is my first opportunity to reply.
Blacktails, I think my case is being taken on for the publicity, the cause, and the additional claims it is likely to generate as it appears the legal firm wish to raise public awareness on the matter .
I wish for my case to me made public because of the cause, but as I have made a loss, also to recoup this.
I am not a lawyer but I believe the current unidentified additional claims may be considered low value (in terms of general and punitive damages) guessing - £5,000- £20,000 per claim, but I expect there could be many hundreds and it will cause an even greater headache for defendants. I recognise however, like Jeremy 75 says, claimants may not wish to use their legal firm , and this weakens any negotiation I may try to minimise my legal fees
Re MBVitoria’s point, I am not sure how the limitation period would apply if the claimants didn’t know the matter , occurred without their knowledge, (until it is publicised) .
Forester 19, your point “If your case is so good, why don't you pay the 25% and negotiate a success fee with solicitors where you get a cut of their fees for all the other claimants? That would dwarf your 25% and reduce their risk, a win win.” Although an interesting suggestion I don’t think this would be ethically appropriate …..
But perhaps I could ask if a lot of claimants came forward by my supporting publicising the matter, that I would receive the full damages due (if the other claims generated awards that would cover my share of legal fees )??
Many thanks again everyone
Thank you everyone for your very helpful comments. I have been flat out with work and this is my first opportunity to reply.
Blacktails, I think my case is being taken on for the publicity, the cause, and the additional claims it is likely to generate as it appears the legal firm wish to raise public awareness on the matter .
I wish for my case to me made public because of the cause, but as I have made a loss, also to recoup this.
I am not a lawyer but I believe the current unidentified additional claims may be considered low value (in terms of general and punitive damages) guessing - £5,000- £20,000 per claim, but I expect there could be many hundreds and it will cause an even greater headache for defendants. I recognise however, like Jeremy 75 says, claimants may not wish to use their legal firm , and this weakens any negotiation I may try to minimise my legal fees
Re MBVitoria’s point, I am not sure how the limitation period would apply if the claimants didn’t know the matter , occurred without their knowledge, (until it is publicised) .
Forester 19, your point “If your case is so good, why don't you pay the 25% and negotiate a success fee with solicitors where you get a cut of their fees for all the other claimants? That would dwarf your 25% and reduce their risk, a win win.” Although an interesting suggestion I don’t think this would be ethically appropriate …..
But perhaps I could ask if a lot of claimants came forward by my supporting publicising the matter, that I would receive the full damages due (if the other claims generated awards that would cover my share of legal fees )??
Many thanks again everyone
Rookes v Barnard in House of Lords set out the criteria for exemplary damages (punitive to our US cousins), it is a rare beast. Generally unavailable in civil litigation, and only against government bodies in cases of oppressive, arbitrary or unconstitutional actions by the servants of government. It can be ordered, but a unicorn award...I have seen it once.
Unless you are a CMC who can produce the 100 solid claimants up front to generate a high volume low value (£20k is not big) group litigation claim, then don't expect any of the sharper legal players to haggle on DBA fees.
Unless you are a CMC who can produce the 100 solid claimants up front to generate a high volume low value (£20k is not big) group litigation claim, then don't expect any of the sharper legal players to haggle on DBA fees.
Robertb said:
Also make absolutely sure you or they are indemnified by insurance so you don’t end up on the hook for the defence costs.
OP I'd ask to read through the full T&Cs/contract and make it clear you aren't instructing them before you've received it and agreed. I had one firm drag it's feet and then try hoodwinking me that I'd verbally agreed yes? The fact that I made sure all communication in the early stages was email only...
Do you know if it’s a conditional feee agreement (the 25% deduction is the success fee aspect of funding) or a damages based agreement (the 25% deduction is the totality of costs)
If a DBA, I doubt any firm would be willing to negate the full amount as it could eat in to the bottom line, especially if yours is the first and a specimen claim as in all probability the recovery won’t actually cover their WIP and it may be a loss leader.
Even on a CFA, whilst a firm can negotiate this (as ultimately it is a success fee and recovery over and above WIP) there is generally an under settlement on the recovery of WIP when costs are dealt with and the CFA does tend to allow for a shortfall recovery from a client. Therefore, even if you agreed a lower success fee deduction, you may still end up with a greater deduction.
Personally, I have never taken unrecoverable fees from a client, when there is a 25% success fee deduction and to negotiate on a 25% success fee deduction on the figures proposed, would be something probably not worth the firms while. Especially with the risk of a loss leader and no guaranteed additional income from future clients.
If a DBA, I doubt any firm would be willing to negate the full amount as it could eat in to the bottom line, especially if yours is the first and a specimen claim as in all probability the recovery won’t actually cover their WIP and it may be a loss leader.
Even on a CFA, whilst a firm can negotiate this (as ultimately it is a success fee and recovery over and above WIP) there is generally an under settlement on the recovery of WIP when costs are dealt with and the CFA does tend to allow for a shortfall recovery from a client. Therefore, even if you agreed a lower success fee deduction, you may still end up with a greater deduction.
Personally, I have never taken unrecoverable fees from a client, when there is a 25% success fee deduction and to negotiate on a 25% success fee deduction on the figures proposed, would be something probably not worth the firms while. Especially with the risk of a loss leader and no guaranteed additional income from future clients.
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