What happens if my injury claim goes to court, and I lose?

Under a no win, no fee agreement you will not incur any legal fees if you lose your case. However, there are some important points you need to be aware of.

What are the costs involved in making a personal injury claim

No matter how strong your case, the costs involved in making a personal injury claim can be considerable - especially if your case goes to court.

These costs can include:

• Medical fees
• Solicitor’s fees
• Barrister's fees
• Court fees
• Expert witness fees and other third party costs
• The defendant's legal costs (should you lose your case).

What is a Conditional Fee Agreement (CFA)?

A 'Conditional Fee Agreement' or 'CFA', is the legal term for a no win, no fee agreement. As Legal Aid is no longer available for most personal injury claims, CFAs are now the standard way for claimants to fund a personal injury claim.

A CFA sets out your personal injury solicitor’s terms and conditions, what your solicitor will do, and how the solicitor will be paid after your claim is successful.

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

You would agree and sign a CFA at the start of your personal injury claim.

If your claim is successful

If you win your claim the defendant will pay most or all of your legal fees. With some CFAs, if there is a shortfall, the remainder might be deducted from your compensation settlement or award. You should confirm this with your solicitor before you sign anything.)

You will usually have to pay a success fee to your solicitor. Success fees are deducted from your compensation award and are capped by the Ministry of Justice (MOJ) at 25% of the total compensation award.

If your claim is not successful

If you don't win your claim and receive no compensation, the defendant will seek to recover their costs from you. These, and any other costs payable, would be paid by an After the Event (ATE) insurance policy. Your solicitor will take out the ATE policy at the same time as the Conditional Fee Agreement.

See also:

Why do most injury solicitors charge 25% success fees?

How does no win, no fee work?

How does After the Event (ATE) insurance work?

ATE insurance is a key part of any no win, no fee agreement. This specialised insurance policy will cover the defendant's legal fees should you lose your case. In addition to the defendant's legal fees and injury claim disbursements, ATE insurance will also cover your solicitor’s disbursements.

Together with a CFA, ATE insurance gives you complete peace of mind that whatever happens, you will not face financial loss at the conclusion of proceedings.

Your personal injury solicitor will take out ATE insurance at the beginning of the litigation process, as any costs incurred before the start of the policy cannot be covered retrospectively.

Do I have to pay for the ATE insurance policy?

You only pay for your ATE insurance if you win your case. ATE policies are known as 'self-insuring. As such, the cost of the policy would be deducted from your final compensation settlement.

If you lose your case, you will not have to pay for the ATE cover.

Are there any cases when ATE insurance would not cover me?

An ATE insurance policy could be void if:

• It is proven that a claimant 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.
• A claimant refuses an early settlement offer made by the defendant, and the court subsequently rules that the claimant is entitled to less than or the same as this offer. A claimant could then be liable for the defendant’s legal costs, but only at a level capped by the amount of compensation received.

• See also:

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

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Author:
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.