Funding Contentious Probate Disputes

Before you can make any decision as to whether you wish to engage in resolving a dispute and/or pursue or defend litigation, you will need to understand how much the process will cost, when fees will need to be paid and the options for funding the likely costs.  We have a separate article, setting out how much it can cost to contest a will, here.

It is often the position that having specialist legal advice at the outset of a dispute may avoid unnecessary legal costs being incurred in the long run. At Wright Hassall we have a specialist Contentious Probate team ranked in tier 1 (the best) in the legal directory, “The Legal 500”.

Litigation typically involves three specific types of charges:

• Your own solicitor’s fees and charges;
• Expenses and disbursements, for example: barristers’ fees, experts’ fees and court fees; and
• The costs incurred by your opponent in defending or pursuing a claim, which you may agree or be ordered to pay if you are unsuccessful.

In addition, you may choose to incur additional costs to reduce the risk of paying all or some of the charges described above (such as an insurance premium).

Your Own Solicitor’s Fees and Charges

Pay as you Go, on account and Deferred Payment

With regard to your own solicitor’s fees and charges, the starting position is that you will be required to pay on account of costs and you will be invoiced at regular intervals throughout your matter.  In some circumstances Wright Hassall can enter into an arrangement whereby payment of fees is deferred until the end of the matter which ordinarily, means within three months of a matter being settled or a court making a final order.  It is common for proprietary estoppel cases to be dealt with on a deferred payment basis.  The deferred payment does not apply to any disbursements such as barrister’s fees or court fees.

If a client is not in a position to pay the outstanding fees and charges before the expiry of the three-month period, it may be possible to secure a loan from a specialist funder, who will effectively provide an advance of the settlement or the award ordered by the court.  The loan is drawn down and the funds are used to pay the outstanding fees and charges.  It is a matter between the client-turned-borrower and lender, as to how and on what terms, that loan is repaid.  The loan facility is entirely separate to any payment arrangement a client may have with Wright Hassall.

Conditional Fee Agreement with Success Fee (‘no win, no fee’)

In some cases, typically where the prospects of success are 60% or more, Wright Hassall offers conditional fee agreements, on which a success fee is payable.  These types of arrangements are more commonly known as ‘no win, no fee’ agreements.  A conditional fee agreement with success fee means that if you are successful with your claim, you will pay the firm’s base fees together with an uplift, the extent of which will be agreed at the outset of your matter and by reference to the risk involved in dealing with your case.  The success fee is not recoverable from your opponent.  If you were to be unsuccessful with your claim, there would be no solicitor’s fees or charges payable.

Expenses and Disbursements

With regard to expenses and disbursements, insofar as experts’ fees and court fees are concerned, they are nearly always payable on account and Wright Hassall is not able to fund those types of disbursements.  The exception to the rules is with regard to court fees only, whereby in some circumstances the court will offer a fee remission if a claimant meets the necessary criteria.  If an application for fee remission is successful, the court will issue a ‘Help with Fees’ reference which can be used in place of paying the issue fee or application fee.

With regard to barristers’ fees, some barristers are prepared to offer similar fee arrangements to those listed above, which Wright Hassall can offer, i.e. deferred payment or conditional fee agreements with success fees.  However, barristers are under no obligation to provide such fee arrangements and you may wish to make enquiries as to the terms on which a particular barrister would accept instructions before deciding whom you wish to instruct.  We can assist you with making these enquiries and can direct you to suitably qualified contentious probate barristers who may consider varying their standard terms.

Insurance

Legal Expenses Insurance or Before the Event Insurance

It may be the case that you have the benefit of Before the Event/legal expenses insurance and you should make enquiries in that regard.  Legal expense insurance is often included as an additional benefit on insurance policies and premier banking packages.  If you do have existing insurance, there is usually a time limit for making a claim for your legal costs and it is therefore important to take steps to notify the insurer without delay.

After the Event Insurance

After the Event insurance for your opponent’s legal costs and/or disbursements can be purchased to cover the risk of paying some of the expenses of litigation.  After the Event insurance policies will not normally provide insurance cover for your own solicitor’s fees.  Typically, insurers will require your case to have prospects of success of 60% or more in order to offer any insurance product.  It is therefore advantageous to seek legal advice in early course, in order that prospects of success can be assessed and if necessary, where a broker or insurer require a barrister’s opinion, a barrister can be instructed to advise.

Generally, the premium paid for an After the Event insurance policy is not recoverable from your opponent if the litigation is successful.  Payment of the premium for an After the Event insurance policy may be deferred until the conclusion of the litigation and/or the premium may be self-insuring which means that it is not payable if the litigation is unsuccessful.

Wright Hassall is not an insurance broker but we can assist you in making an application to an insurance broker or an After the Event insurer and advise you upon the suitability of the terms of any insurance policy which is offered. 

It is not guaranteed that an application will lead to insurance products being offered or that any products which are offered, will be sufficient to cover all of the legal costs, or that payment for the premium will be deferred and/or self-insuring. 

Funding

Third Party Funding

In terms of funding your claim, third party funding can also be an option and this is whereby a third party (who is not a party to the dispute) agrees to finance your disbursements and/or legal costs in return for a fee.  The fee is usually a percentage of any monies which you recover.  In the event you are successful, you will pay the third party funder from the funds which you obtain as part of your settlement.  This is to be differentiated from a loan.  If the litigation is unsuccessful, a third party funder will lose their investment and no sum will be repayable.

Third party funders usually require After the Event insurance to be in place to work alongside their funding agreement.  This means that if you are unsuccessful, there will not be anything to pay to the third party funder and the After the Event insurance will normally cover the opponent’s costs and your own disbursements.

There are various third party funders available in the marketplace and we can assist you in making enquiries.

Specialist Litigation Loan

Separately, it can sometimes be possible to acquire specialist litigation funding by way of a loan.  This type of loan can be used to fund your costs and disbursements as they are being incurred.  This may be a suitable option if you are unable to afford to pay the costs and disbursements at present but will be in a position to pay off the litigation loan once your matter has resolved or when the estate in which you already have an interest, is administered.

Loans are normally provided as a facility from which you can draw down what you need and when you need it, that is, when the costs and disbursements need to be paid.  Interest is usually charged only on the amount you draw down and not on the full loan.  Therefore, you only pay interest on the amount you use and for that reason this option can be more cost effective.

Bespoke Advice to Your Own Claim

When you instruct Wright Hassall to represent you in either bringing or defending a claim; or resolving a dispute, we will consider all of the above options with you.  That process will be tailored to your claim; your own personal circumstances; and factor in your opponent’s costs and disbursements.  Our objective being to ensure that you have the most beneficial package in place to allow you to proceed with your matter knowing that all fee arrangements, insurance and funding matters have been fully explored. 

Not all alternative funding arrangements will be suitable for all matters and Wright Hassall is under no obligation to offer any alternative funding arrangements to you.

Please get in touch with us to discuss your circumstances and we will look at your individual situation and talk to you further about how much your case might cost.

Funding Litigation

Which payment liabilities are covered under each funding arrangement?

Type of funding	Paying my legal costs with Wright Hassall?	Paying your own disbursements (external expenses)	Paying your opponent’s costs and disbursements
Normal hourly rates
Full conditional fee agreement (“CFA”) with success fee for Wright Hassall’s costs
Discounted conditional fee agreement (“Discounted CFA”) with success fee for Wright Hassall’s costs
Membership organisations and associations
Before the event/Legal Expenses Insurance
After the Event (“ATE”) Insurance for opponent legal costs and/ or disbursements
Third party funding
Specialist litigation funding
Personal Loan

If you have any queries regarding the above, please do not hesitate to contact either Martin Oliver or Katie Alsop.