Funding wills & probate disputes

We do try to offer CFA (no-win no-fee) funding in cases that have merit but where the potential claimant would have difficulty in funding the claim. If there are other ways of funding (for instance, BTE insurance or loans) we would try to encourage clients to look as those options first.

How we assess disputes for no win no fee

Before offering CFA funding, we need to undertake a risk assessment process whereby the details of the claim and all pertinent information is provided to three senior assessors within the firm to ensure that the risks of losing the claim (and therefore not being paid) are minimal and able to be managed.

The assessment also gives us a percentage range to attribute to the success fee which can be anything up to 100% of our base costs. We generally offer a staged success fee taking into account the stage of the claim when settlement is reached. We do offer to cap the success fee at no more than 25% of any award received. Overall, the client needs to be aware that funding their claim under a CFA is more expensive than a private agreement.

Which types of claims?

CFA’s are generally only used by us in relation to claims under the Inheritance (Provision for Family and Dependants) Act 1975. These claims, by their very nature, are usually pursued by claimants who do not have much money. Particularly, when the claimants are minor children, CFA funding is the only appropriate way forward. Therefore, CFA funding does have a place in this sort of claim, but often the claims are low value and/or the claimant is not likely to get a huge award, therefore we have to try to ensure that we can push for an early settlement to keep everyone’s costs to a reasonable level.

Conditional fee agreements still involve costs

CFA funding, despite its common name of no-win no-fee, is not without cost. The following costs are possible :-

• All disbursements (court fees, Counsel’s fees, expert fees, mediator fees etc) are payable. Although in some cases (eg if we are acting for minor children) TR will agree to fund the disbursements throughout the claim; they would still be payable at the end of the matter, whether they win or lose. If they win, we would hopefully recover all disbursements, but if they lose, these will still be liable to be paid.

• Adverse costs - if the claim is not successful, there may be a personal costs order against the Claimant for the costs incurred by the other side.

• ATE Insurance Premium - if the Claimant decides to take out ATE insurance, it is usual for this to be self-insuring so that, if the claim was lost, the premium would not be payable. However, if the case was successful, the premium would be payable by the claimant and this could be tens of thousands of pounds which they may have to meet out of any award.