To formally appoint Keller Lenkner UK as your lawyers, we need you to sign a Conditional Fee Agreement (CFA). A CFA is a written agreement between you and us. It is also known as a No-Win, No-Fee agreement.
We know that signing a CFA can be daunting. Legally, the contract must use specific words and phrasing and this ‘legal speak’ can be confusing. To keep things simple, we have provided some clear explanations to make sure you understand exactly what you are agreeing to when you work with us.
This agreement is governed by the law of England and Wales.
This agreement is a legal Contract between you (‘the Client’) and your Solicitor/s. Before agreeing to the terms of this Contract, you must read the whole Contract carefully.
This Agreement should be read in conjunction with our Terms & Conditions and the Notice of Right to Cancel (see 7. below).
If you are happy to be bound by the terms of this Agreement, you should sign the Agreement, where indicated, at the end of this Agreement.
Once you have signed our Agreement, we will send you a copy this agreement, along with our Solicitor’s Client Care Letter.
The agreement is designed to avoid future disputes that may arise after it has been made, and, as such, the parties have agreed in advance what will happen in the event that the Claim does not conclude in a ‘Win’.
By signing the CFA, you agree to the terms of our contract.
1. What is covered by this Agreement?
1.1 Your claim for damages for Distress and Loss (including General Damages for Pain, Suffering and loss of Amenity and Damages for Pecuniary Loss) suffered as a result of, but not exclusively, the misuse of private information by the defendant,
1.2 All work already undertaken on your behalf including the work required in setting up this agreement;
1.3 Any Application for pre-action or non-party disclosure;
1.4 Any Appeal you make against an Interim Order or an Assessment of Costs;
1.5 ADR (including mediation) relating to the ‘claim’;
1.6 Any Appeal by the Opponent;
1.7 Any proceedings you take to enforce a Court Judgment, Order or Agreement;
1.8 Negotiations about and/or a Court Assessment of the Costs of this claim.
The services we might provide to you under the agreement. The amount and type of services required will depend on your case.
2. What is not covered by this agreement (unless otherwise agreed)?
2.1 Any Appeal you make against the final Judgment or Order;
2.2 Any Part 20 Counterclaim made against you, or Counterclaim or Defence by way of set off which still exists after your claim has either been ‘Won’ or you ‘Lose’, or otherwise concluded;
2.3 Any Appeal against an Interim Order made by your Opponent.
Interim Orders are temporary orders made by the court until Final Orders can be made.
A counterclaim might happen if you sue someone for breach of contract, and they respond by claiming that it was you who breached the contract.
Neither of these are common in data breach cases, but we will explain more about each if necessary.
3. Paying Us If You ‘Win’
3.1 If your claim is successful you are liable to pay all our basic charges, our expenses and disbursements and a success fee, together with the premium for any After The Event (‘ATE’) insurance you take out.
3.2 In the event that your claim has a value in excess of the Small Claims Limit (currently £1,000 for damages for Pain, Suffering and Loss of Amenity or £10,000 for other losses), then you may be entitled to seek recovery from the Opponent, part, or all, of our basic charges and our expenses and disbursements, you may also be able to the ATE Insurance premium from the opponent with any unrecovered element being paid by you subject to clause 8.5 below.
We understand that this wording can be confusing and that you might be worried about how much you will have to pay if you win.
Legally, we must word our CFA in a specific way, but if your claim is successful, the only thing you will pay is our success fee. We will recover all the other costs, charges and expenses (including insurance premiums) that you are liable for from the Defendant or the insurance provider.
Any success fee deducted from your compensation will be capped at 25% and we guarantee that you will receive no less than 75% of any compensation awarded to you as long as you abide by our T&Cs.*
4. Disbursements and Expenses
4.1 If you receive interim damages before the end of your claim, we may require you to pay our disbursements and expenses to date at that point and an amount for future expenses and disbursements;
4.2 If your claim is successful but you are ordered to pay the other side’s charges following an Interlocutory Hearing, then such charges will usually only be up to the amount of damages awarded to you. Such charges may be covered by your ATE insurance policy subject to the terms of the policy and your compliance with such terms;
4.3 If, prior to a final Judgment, you are awarded any costs, either by way of a Court Order or Agreement, then we are entitled to payment of those costs together with any success fee on those charges if your claim is successful.
We might incur expenses on your behalf while working on your case. However, we take out insurance to protect you from these costs if we lose, and, if we win, we recover these from the Defendant.
As long as you follow our T&Cs* you won’t have to pay these disbursements and expenses, win or lose.
5. What Do I Pay If I Lose?
5.1 If you lose you do not have to pay our basic charges provided that you have complied with our Terms and Conditions. However, you may be required to pay our disbursements and expenses, although these may be covered by any ATE insurance policy you have purchased, subject to compliance with the Terms and Conditions of that policy;
5.2 If you lose your claim, you may be responsible for some, or all, of the Opponent’s costs. If your claim includes a claim for General Damages for Pain, Suffering and Loss of Amenity, then you may benefit from Qualified One-Way Costs Shifting. In such circumstances, the Court will not usually enforce an Order for Costs against you unless:
5.2.1 The claim is fundamentally dishonest; or
5.2.2 The proceedings have been struck out; or
5.2.3 The claim includes a claim for the financial benefit of another party.
We know this can be confusing as you are signing up to no-win, no-fee.
However, we take out insurance to protect you from these costs, and, as long as you agree to this insurance and abide by our T&Cs* you won’t have to pay a penny.
6. Basic Charges
6.1 These are for work undertaken on your claim from your initial instructions until this Agreement ends. These charges are subject to an annual review;
6.2 We calculate these charges based on each hour engaged on your case. Routine letters and telephone calls are charged as units of 1/10 of an hour. Any other type of letters and telephone calls will be charged on a time engaged basis. The hourly rate that we will charge is £400 per hour depending on the actual work being undertaken and the grade of fee earner undertaking the work. This section should be read alongside our Terms and Conditions and the section entitled ‘Your Legal Costs and Disbursements’.
6.3 The hourly rate set out in 6.2 assumes that the work being undertaken relates to negotiations and/or proceedings in the County Court that is commensurate with the type of work, in terms of value and complexity akin to that jurisdiction. Occasionally it may be necessary to commence proceedings in the High Court in relation to declaration proceedings or proceedings for Injunctive relief. In these circumstances, and to reflect the increase complexity of these types of proceedings our hourly rate will be charged at £550 per hour.
We apply basic charges for the work we do on your case.
If you win, we will seek payment for these costs from the Defendant. This does not include the cost of our success-fee. If you lose, these costs will be covered by the insurance we take out on your behalf as long as you abide by our T&Cs.*
7. Right to Cancel/Ending This Agreement
7.1 If you have entered into this Agreement in the physical presence of our employees, servant and/or agent, away from our business premises (i.e. in your home), or the Contract was agreed on our business premises immediately after you were personally and individually addressed away from our business premises, in the presence of one of our employees, servants and/or agents, then you have a right to cancel this Agreement within 14 days;
7.2 If you cancel within the 14-day time limit, you will pay nothing. However, if you end the Agreement before you ‘Win’ or ‘Lose’, you pay our basic charges and disbursements and expenses. If your case ultimately succeeds, you also pay a success fee. We reserve the right to end this Agreement at any time if either you have failed to comply with the terms of this Agreement, you reject our advice on any potential settlement or the prospects of success of a ‘Win’ are reduced to below 50%.
From the day you sign, you have the right to cancel this agreement within 14 days. If you cancel within the 14-day time limit, you will pay nothing.
However, if you cancel the agreement after this period, you may have to pay our basic charges, disbursements, and expenses. Furthermore, if you eventually win your case, we may also be entitled to a success fee.
If we decide to end our agreement because there is a limited chance of success, you won’t have to pay us anything provided you have adhered to our T&Cs.*
8. The Success Fee
8.1 The success fee is set at 75% of our basic charges, or 100%, if the claim concludes less than 45 days before Trial, including following a Judgment.
8.2 The success fee percentage reflects the following: –
8.2.1 Our assessment of the risks of your case;
8.2.2 The fact that if you lose, we will not earn anything;
8.2.3 Any other appropriate factors;
8.2.4 Our arrangements with you about paying expenses and disbursements;
8.2.5 The risks of recovering damages from your opponent, which is less than their Part 36 Offer which you have rejected, on our advice;
8.2.6 Unless it is expressly stated in writing, no part of the success fee relates to postponement of payment of fees and expenses.
8.2.7 Additional case specific risks which are set out in any risk assessment.
8.3 The success fee cannot be more than 100% of the basic charges in total.
8.4 As your claim may include a claim for Pain, Suffering and Loss of Amenity, for psychological or psychiatric injury, there is a maximum limit, in percentage terms, on the level of success fee which we can recover from you.
8.5 That maximum limit is 25% of the total amount of any claim for General Damages for Pain, Suffering, Loss of Amenity and Damages for Pecuniary loss. Claims for future Pecuniary Loss are unaffected.
8.6 The maximum limit in percentage terms that is applicable is net of any sums recoverable by the Compensation Recovery Unit of the Department of Work and Pensions. The maximum limit (25%) is inclusive of any VAT charges at the prevailing rate.
8.7 The maximum limit, in percentage terms, only applies to a success fee for proceedings at first instance. The maximum limit would not apply, for example, to any Appeal by your opponent.
8.8 In the event of a dispute regarding the calculation of the success fee, the parties agree for the dispute to be determined by an independent barrister of at least 10 years call, to be appointed by agreement between us. In default of agreement, the barrister be appointed by the President of the Law Society of England and Wales, such barrister to act as expert, not arbitrator and his/her decision shall be binding.
The barrister’s fees are to be met by the losing party to the dispute.
We calculate our success fee by taking the costs we have incurred and multiplying them by either 75% (if the case concludes before litigation) or 100% after litigation.
If we win, you will be liable for our success fee (if we cannot recover this from the other side). However, we guarantee that you will never have to pay more than 25% of any compensation you receive.
We will waive any amount that takes your success fee payment above this 25%. So, you will always receive 75% of any compensation awarded as long as you abide by our T&Cs.*
9. Additional Information and Terms
9.1 We add VAT at the prevailing rate that applies to the work when it has been carried out. VAT is added to the total of the basic charges and the success fee (however, the maximum success fee of 25% is inclusive of VAT). Our VAT registration number is 329824182 The parties acknowledge and agree that this Agreement is not a contentious Business Agreement within the meaning of the Solicitors Act 1974;
9.2 It may be that your opponent makes a Part 36 offer, or other formal offer to settle your claim, which you reject on our advice, and your claim for damages goes ahead to Trial where you recover damages that are less than that Offer. If this happens, we will not claim our basic charges and success fee for any work done after the expiry of the Part 36 Offer. However, in these circumstances, you may be ordered to pay your opponent’s costs from the expiry of the Part 36 Offer. If your claim includes a claim for General Damages for Pain Suffering and Loss of Amenity, then any payment to your Opponent in costs, will be limited to the amount of damages and interest awarded to you, under the Qualified One-Way Costs Shifting Provisions;
9.3 In the event of a ‘Win’, but we fail to recover all of our basic charges and success fee from the opponent; we will not claim from you any basic charges, success fee and vat, in excess of the amount recovered (for basic charges, success fee and vat) from the opponent.
9.4 The above clause (9.3) will not apply if this agreement is ended for any reason before a ‘Win’ or a ‘Lose’.
9.5 The description of the Claim, as set out above and within the definitions, is for recognition purposes and does not in any way limit the ambit of this Agreement; the ambit of the retainer shall be taken to include all issues that the parties understood to be the subject of the Claim. The ambit may change from time to time, as the Claim progresses. For example, if an opponent is incorrectly described or if there are additional opponents added, after this Agreement was first made, the ambit of the Agreement will not be in any way limited by the fact that the description of the Claim as set out above, may not be wholly accurate and complete;
9.6 You have the right to apply to the Court for an assessment of our costs, including the success fee.
Additional T&C’s, including:
* Breaking our T&Cs would include things like misleading your solicitor or failing to co-operate with us.