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Paying privately for a solicitor

This content applies to England & Wales
Situations where a client pays privately for a solicitor and conditional fee agreements.

Information about costs

A solicitor seeing a person for the first time must advise whether s/he is entitled to receive legal aid. A person who is not eligible may want to pay the solicitor privately. The agreement with a solicitor is a contract for the supply of services, and the law regulates any such agreement.[1]

A solicitor is required to give the client information on how s/he will be charged, or what the basis for charging will be.[2] Costs information is to be given to the client at all appropriate stages throughout the case, and should be updated at regular intervals of not more than six months.

In some circumstances, a client who is unhappy with the solicitor's bill can ask for either a remuneration certificate from the Law Society, or an assessment by the court, of how much s/he should pay. In either case, an independent person looks at the costs being charged to assess if they are reasonable. An unhappy client should take advice before using these procedures as, in either case, there are costs consequences, which may include paying more. Also, if a dispute about costs is really about negligence, this is something on which a professional opinion should be obtained: it may or may not be relevant to the amount of costs. In any dispute about costs, the client's first step should be to discuss the bill with the solicitor involved promptly and, if necessary, to use the firm's complaint procedure. In many cases, the dispute can be resolved amicably.

Conditional fee agreements

Under a conditional fee agreement (also known as 'no win no fee' agreement), a litigant would not have to pay fees to her/his solicitor if s/he lost the case. However, if the litigant wins her/his case, s/he would have to pay the solicitor's fees, as well as a 'success fee' out of the damages and costs recovered from the other party. The costs recovered may not cover all of the costs payable and part of the compensation may be used for costs, although some solicitors use an agreement that limits their costs to the costs recovered. The litigant and the solicitor will have agreed the success fee before the case is taken on; this can be anything up to 100 per cent of the costs that the solicitor would have otherwise charged.

Although a party will not have to pay fees to the solicitor if s/he loses the case, s/he will still probably be ordered to pay the other party's costs under the normal costs rules. There are insurance companies that have been set up to cover this risk. Clients should be advised to take out insurance cover, or check if any insurance policy already held for other purposes (eg life insurance, building and content insurance) would agree to extend cover.

In deciding whether or not to enter into a conditional fee agreement, the following should be considered:

  • how to obtain protection against paying the other side's costs - what insurance is available to protect her/him from the other side's costs?
  • while the solicitor's costs may be covered, will the conditional fee agreement also include barrister's fees and expert fees, and if not, how much are these?
  • will the solicitor's costs be so high that the case is not worth bringing at all?

[1] Solicitors Act 1974, as amended by the Courts and Legal Services Act 1990.

[2] Solicitors Costs Information and Client Care Code 1999.

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