What happens if I lose a personal injury court case?

What are the implications of losing a court cases and what steps should you take to cover yourself against costly legal fees?

See also: How often do injury claims go to court and what if they do?

The costs of making a claim

No matter how strong your case for compensation when making a personal injury claim, the process is still costly.

Expenses can include:

  • Medical fees
  • Solicitor’s fees
  • Barrister fees
  • Court fees
  • Expert witness fees and other third party costs
  • Your opponent’s legal costs should you lose. 

If you win your case, your opponent will pay most or all of your legal fees, and anything they do not cover can be taken out of your compensation.

If you lose and receive no  compensation however, how can you cover any costs your opponent may try to recover from you? And what about your own solicitor’s fees and disbursements (third party costs)? 

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Conditional Fee Agreements (No Win, No Fee)

This is the simplest and most common contract to enter into with your personal injury solicitor when making a claim , as it safeguards you against having to pay their fees if you do not win your case. 

If your claim is successful you will usually have to pay ‘success fees’ to your solicitor.  Success fees are deducted from your compensation award and are capped by the MOJ at 25% of the total award.

If your claim is not successful,  the defendant’s fees and costs will be paid by an After the Event (ATE) insurance policy.  Your solicitor will arrange the ATE policy at the same time as  the Conditional Fee Agreement.

All solicitors will offer you a Conditional Fee agreement (CFA) if they feel you have a strong case.

Read more: Why do most injury solicitors charge 25% success fees?

Find out more about no win, no fee

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What is After the Event (ATE) insurance?

ATE insurance is there to cover your opponent’s legal fees should you lose your case. Alongside a CFA, this should give you complete peace of mind that whatever happens, you will not face major financial losses at the conclusion of proceedings.

Not only will the insurance cover the defendant's  legal fees and disbursements, but also your solicitor’s disbursements

As your personal injury solicitor will advise you, it is prudent to take out ATE insurance at the beginning of the litigation process, as any costs incurred before you take it out cannot be covered retrospectively.

You only pay for your ATE insurance if you win your case, and the cost of the policy can be taken out of your final settlement. If you lose your case, you will not have to pay for the ATE cover.

ATE insurance will not cover you if…

  • It is proven that you have lied or fabricated evidence.
  • It is found that there were no reasonable grounds for bringing the case to court, there was an abuse of the process or conduct that obstructed the proceedings.
  • You refuse an early settlement offer made by the defendant, then the court rules that you are entitled to less than or the same as this offer. You may then be liable for the defendant’s legal costs, but only at a level capped by the amount of compensation you receive.
Gaynor Haliday, Legal researcher

About the author

Gaynor Haliday is an experienced legal researcher and published author. She has had numerous articles published in the press and is a legal industry commentator.

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