Funding Civil Litigation-
Intro-
As well as their own legal costs and disbursements, an unsuccessful party may also end up paying a
significant amount of the successful party’s costs pursuant to the general rule under CPR 44.2(2).
Many parties many rely on third party funding for their litigation:
Legal aid
Insurance
No win no fee agreements
o Conditional fee agreements
o Damage based agreements
Duty to advise-
Chapter 1 of the SRA Code of Conduct 2011 requires a solicitor to give their client info about costs
and methods of funding.
Clients should be given information about costs at the outset of a claim and, when
appropriate, as the matter progresses: O(1.13
A solicitor should normally ensure that they have considered with the client how the client will fund
their own costs of the proceedings,& also possibly the opposition’s costs if the opposition is
successful in the litigation - IB(1.13), IB(1.15) and IB(1.16).
Solicitor must advise the client of potential liability for any other party’s costs
o If acting for legal aid, they must explain that even if the client is successful, the other
party may not be ordered to pay costs, or may not be in a position to do so.
--
Legal Aid Funding-
The Legal Aid, Sentencing and Punishment of Offenders Act 2012
Effective from 1st April ‘13
Aimed to reduce public spending
As a result of this Act, the Legal Services Commission has been replaced by the Legal Aid
Agency (‘LAA’), which is an Executive Agency of the Ministry of Justice.
-
Which type of claims qualify-
Since ‘13 - civil legal aid is only available for certain areas of legal work – subject to some exceptions
The rationale for the limitation of legal aid in civil claims is that many claims previously
funded by the state will now be taken on by solicitors under a CFA or DBA.
To qualify for any legal aid, all claims must be matters of English law.
Excluded categories of work:
LASPO ‘12 Sch 1
, In overview only, the following types of work will not be funded (some subject to various
exceptions):
allegations of personal injury or death, other than allegations relating to clinical negligence
in cases of severely disabled infants or where there is significant public interest involved;
conveyancing; boundary disputes; the making of wills; matters of trust law; defamation (libel
and slander) or malicious falsehood; matters of company or partnership law; and other
matters arising out of the carrying on of a business (including contract claims);
employment cases; breach of statutory duty; negligence; consumer cases; and, education
cases.
Others (OUTSIDE LPC SCOPE) - include: housing matters where a home is at immediate risk, judicial
review, certain family proceedings, clinical negligence claims relating to birth injuries, claims against
public authorities, mental health and immigration.
-
What type of funding is available?-
Legal help:
Provides initial advice & assistance to legal problems
o Eg: letter writing, telephone calls, getting a barrister’s opinion
But it will not cover issuing or conducting proceedings or providing advocacy service
Help at court:
Allows solicitors to speak on the client’s behalf at certain court hearings without acting
formally on their behalf and without going on the record in the case
o Eg: for one stand alone hearing and not for the entirety of the case
To qualify for help at court the client needs to satisfy certain financial conditions, & show
that having someone to speak on their behalf is reasonable, cost-effective and likely to be of
real benefit to them.
Legal Representative:
Allow clients to be represented in court when they are being sued or taking their own
proceedings against another party.
It covers preparation for, and advocacy at, a final hearing in contested proceedings. There
are two forms of help available:
o Investigation Help: Investigating strength of the claim
To qualify, the prospect of success must not be clear and the investigation
required must be likely to be expensive.
Once the investigation is complete, the claim will either not proceed or an
application for full representation is made
o Full Representation: Main form of legal representation
All work for trial and beyond is covered
The funding certificate will limit the terms of work and amount of costs that
the solicitor can incur. When the limit is reached, or about to be exceeded,
Intro-
As well as their own legal costs and disbursements, an unsuccessful party may also end up paying a
significant amount of the successful party’s costs pursuant to the general rule under CPR 44.2(2).
Many parties many rely on third party funding for their litigation:
Legal aid
Insurance
No win no fee agreements
o Conditional fee agreements
o Damage based agreements
Duty to advise-
Chapter 1 of the SRA Code of Conduct 2011 requires a solicitor to give their client info about costs
and methods of funding.
Clients should be given information about costs at the outset of a claim and, when
appropriate, as the matter progresses: O(1.13
A solicitor should normally ensure that they have considered with the client how the client will fund
their own costs of the proceedings,& also possibly the opposition’s costs if the opposition is
successful in the litigation - IB(1.13), IB(1.15) and IB(1.16).
Solicitor must advise the client of potential liability for any other party’s costs
o If acting for legal aid, they must explain that even if the client is successful, the other
party may not be ordered to pay costs, or may not be in a position to do so.
--
Legal Aid Funding-
The Legal Aid, Sentencing and Punishment of Offenders Act 2012
Effective from 1st April ‘13
Aimed to reduce public spending
As a result of this Act, the Legal Services Commission has been replaced by the Legal Aid
Agency (‘LAA’), which is an Executive Agency of the Ministry of Justice.
-
Which type of claims qualify-
Since ‘13 - civil legal aid is only available for certain areas of legal work – subject to some exceptions
The rationale for the limitation of legal aid in civil claims is that many claims previously
funded by the state will now be taken on by solicitors under a CFA or DBA.
To qualify for any legal aid, all claims must be matters of English law.
Excluded categories of work:
LASPO ‘12 Sch 1
, In overview only, the following types of work will not be funded (some subject to various
exceptions):
allegations of personal injury or death, other than allegations relating to clinical negligence
in cases of severely disabled infants or where there is significant public interest involved;
conveyancing; boundary disputes; the making of wills; matters of trust law; defamation (libel
and slander) or malicious falsehood; matters of company or partnership law; and other
matters arising out of the carrying on of a business (including contract claims);
employment cases; breach of statutory duty; negligence; consumer cases; and, education
cases.
Others (OUTSIDE LPC SCOPE) - include: housing matters where a home is at immediate risk, judicial
review, certain family proceedings, clinical negligence claims relating to birth injuries, claims against
public authorities, mental health and immigration.
-
What type of funding is available?-
Legal help:
Provides initial advice & assistance to legal problems
o Eg: letter writing, telephone calls, getting a barrister’s opinion
But it will not cover issuing or conducting proceedings or providing advocacy service
Help at court:
Allows solicitors to speak on the client’s behalf at certain court hearings without acting
formally on their behalf and without going on the record in the case
o Eg: for one stand alone hearing and not for the entirety of the case
To qualify for help at court the client needs to satisfy certain financial conditions, & show
that having someone to speak on their behalf is reasonable, cost-effective and likely to be of
real benefit to them.
Legal Representative:
Allow clients to be represented in court when they are being sued or taking their own
proceedings against another party.
It covers preparation for, and advocacy at, a final hearing in contested proceedings. There
are two forms of help available:
o Investigation Help: Investigating strength of the claim
To qualify, the prospect of success must not be clear and the investigation
required must be likely to be expensive.
Once the investigation is complete, the claim will either not proceed or an
application for full representation is made
o Full Representation: Main form of legal representation
All work for trial and beyond is covered
The funding certificate will limit the terms of work and amount of costs that
the solicitor can incur. When the limit is reached, or about to be exceeded,
