CFA | DBA | Retainer
CFA | DBA | Retainer
Your commercial lawyer has now assessed your legal dispute as having acceptable prospects of success after completing their full risk assessment.
They may now want to talk to you in depth about the funding of the potential litigation, and may have mentioned certain terms such as a:
So what does this all mean?
What is a CFA or Conditional Fee Agreement?
A Conditional Fee Agreement or (CFA), is simply a formal (written) agreement you have with your lawyer that sets out the conditions on when and how you will pay for your lawyer’s legal services.
The condition is usually that your legal dispute is won, and was originally known as a no win no fee agreement. The general thrust of the Conditional Fee Agreement is that you won't have to pay anything towards your legal costs if your claim is unsuccessful.
Conditional Fee Agreements were first introduced in 1998, as a solution for those without the financial means to afford legal costs, to be able to secure proper legal representation.
Although there have been some changes and amendments over the years, many in fact, the basic principle still remains, that clients with valid legal disputes can achieve a legal remedy, despite not having the capital required to pay legal fees upfront.
What is a DBA or Damages Based Agreement?
A DBA is another formal written agreement you have with your lawyer, whereby a client and lawyer can agree to share the risk of litigation.
The payment of lawyers fees, counsel fees and VAT by a client under a DBA is dependent on achieving a win. The definition of a win must be carefully agreed when the DBA is entered into, and the cost of the DBA is based on a percentage of the sum recovered from the losing opponent, i.e. your damages award.
The actual amount of the percentage deduction from damages can vary between legal firms, and legal dispute types, but anything up to 50% in a commercial legal dispute can be deducted as compensation for the risk of the lawyer not being paid any fees in the event that your legal dispute is lost. Again, it’s a no win no fee type arrangement.
Private retainers are another sort of agreement between a client and their commercial lawyer, but unlike a CFA or DBA, it usually involves actually paying money for legal services on an ongoing basis, usually monthly in arrears, although many other payment schedules can be agreed.
So the agreement would set out a sort of rate card, saying something along the lines of; a partner costs £350 per hour, senior lawyer £300 ph, junior £200 ph, and the admin clerk £120 ph.
These costs can certainly rack up quickly on any case, so do keep your lawyers’ fees under close watch if you choose to go down this route.
If the potential legal dispute is fairly straightforward, and the legal firm has previous experience of such actions, they may offer you a fix fee deal, which can at least provide you with certainty of your legal fees from the start, although be warned, they will have added a contingency margin in for their own costs protection.
There are advantages and disadvantages to all three funding models, so you need to pay close attention to your lawyers when they explain them to you.
The next step is to try and secure ATE insurance.