For someone diagnosed with mesothelioma, the phrase “no win no fee” can sound reassuring but incomplete. A solicitor may not require payment upfront, yet that does not automatically tell you what happens to legal costs if the claim succeeds, what expenses are covered if it fails, or whether anything can ultimately be deducted from compensation.
Mesothelioma claims in England and Wales also have an important funding distinction that is easily missed. They are not treated in exactly the same way as most modern personal injury claims. Current Civil Procedure Rules continue to preserve special arrangements under which certain conditional fee agreement success fees and qualifying after-the-event insurance premiums can remain recoverable from the losing defendant in mesothelioma proceedings.
This means the most useful question is not simply, “What percentage does the solicitor charge?” The better question is, “After the defendant has paid the recoverable legal costs, exactly which charges, if any, will still come out of my compensation?” Understanding that distinction can prevent an unpleasant surprise when a claim concludes.
What Does No Win No Fee Mean In A Mesothelioma Claim?
A mesothelioma solicitor may handle a claim under a Conditional Fee Agreement, commonly called a CFA. Under this arrangement, payment of some or all of the solicitor’s fees is conditional upon the case succeeding. If the claim is unsuccessful, the solicitor will generally not charge the legal fee covered by the agreement, subject to the exact terms of the contract.
However, “no win no fee” should never be interpreted as meaning that every possible expense disappears. Medical evidence, court fees, specialist reports, barrister fees, tracing work and other payments made to third parties are known as disbursements. The agreement should state who pays these expenses in each possible outcome.
Why Mesothelioma Claims Have A Special Costs Position?
Most personal injury claimants are now subject to reforms introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Those reforms generally stopped successful claimants from recovering CFA success fees and most after-the-event insurance premiums from defendants.
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Mesothelioma proceedings retain a special exception under the current Civil Procedure Rules. Practice Direction 48 states that the changes concerning recoverable success fees and insurance premiums have not been brought into effect for mesothelioma claims. It therefore remains possible for an order for costs against a defendant to include these amounts.
The same rules preserve the earlier fixed-success-fee system for relevant employers’ liability disease cases. Ministry of Justice material explains that in mesothelioma cases settling before trial, the recoverable CFA success fee has generally been capped at 27.5% of the solicitor’s base costs. If a case proceeds to trial, different provisions can apply.
This 27.5% figure is particularly important because it is not the same thing as deducting 27.5% of a claimant’s compensation. It relates to legal costs. Confusing those two calculations can significantly distort the apparent cost of obtaining representation.
Does The Solicitor Take A Percentage Of Your Compensation?
Not necessarily. A specialist firm may structure its CFA so that the claimant keeps the damages recovered while the firm seeks its recoverable costs, success fee and other allowable expenses from the defendant. Another agreement may contain provisions allowing specified unrecovered costs to be charged to the client.
For this reason, advertisements alone are not enough to establish the real cost. Before signing, ask the solicitor to confirm in writing whether any success fee, shortfall in base costs, insurance premium, disbursement, VAT or other charge can be deducted from your compensation.
The Solicitors Regulation Authority requires solicitors to give clients the best possible information about how their matter will be priced and the likely overall cost. Charges should be explained clearly enough for the client to make an informed decision.
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The Hidden Cost To Check: The Costs Shortfall
One of the most overlooked issues is the difference between what your solicitor charges and what the defendant is required to pay. These are not always identical amounts.
Suppose a solicitor’s total base costs are higher than the amount agreed or assessed as recoverable from the defendant. The difference is sometimes called a costs shortfall. Whether the solicitor absorbs that shortfall or can seek it from the client depends on the funding agreement and the applicable costs rules.
This is why a promise that “the defendant pays the legal costs” should be followed by another question: “What happens if the defendant does not pay every pound on my solicitor’s bill?” A clear CFA should answer that before the case begins.
Disbursements And After-The-Event Insurance
Mesothelioma litigation may require medical reports, employment records, insurance tracing, expert evidence and occasionally barrister involvement. A firm may fund these expenses while the claim is progressing rather than asking the client to pay them immediately.
After-the-event insurance may also be arranged to protect against specified litigation costs. The special mesothelioma costs regime means qualifying insurance premiums may potentially be recoverable from the losing defendant. Even so, the policy conditions and CFA should be checked carefully rather than assuming every possible expense is insured.
What Happens If The Mesothelioma Claim Loses?
Under a genuine CFA, the solicitor will normally waive the legal fee covered by the agreement if the defined success condition is not met. The remaining financial risk depends on the wording of the CFA, any insurance policy and the circumstances in which the case ended.
For example, different consequences may apply if the client deliberately provides inaccurate information, refuses reasonable cooperation or terminates the agreement without following its conditions. The SRA specifically warns consumers that cancelling a no win no fee agreement after the applicable cooling-off period can sometimes result in charges for work already carried out.
A Better Way To Compare Mesothelioma Solicitors
Comparing firms only by their advertised success fee can be misleading. A more useful comparison is the claimant’s maximum potential deduction in pounds.
Ask each solicitor to provide a written illustration using the same hypothetical compensation amount. For example, ask what you would actually receive if damages were £100,000 after every legal fee, insurance premium, unrecovered cost and other permitted deduction. Then ask for the same calculation if the claim fails or if you decide to stop the case.
This converts complicated funding language into a practical number and makes different CFAs much easier to compare.
Could A Government Mesothelioma Scheme Be Relevant?
A civil claim is not the only possible route in every case. The Diffuse Mesothelioma Payment Scheme may assist certain people who were negligently exposed to asbestos while working in the UK but cannot pursue an employer or its insurer. Eligibility conditions apply, including rules concerning diagnosis, employment exposure and previous compensation.
The scheme should not be treated as an automatic substitute for a civil claim. A specialist assessment may identify an employer or historical insurer that was initially difficult to locate. The correct route can therefore depend heavily on the individual’s work and exposure history.
Questions To Ask Before Signing A No Win No Fee Agreement
Ask for the CFA and client-care information in writing and read the sections dealing with compensation deductions rather than concentrating only on the phrase “no win no fee.” Confirm who pays disbursements, whether insurance is arranged, what happens to any costs the defendant refuses to pay, and whether cancellation creates a liability.
It is also sensible to ask whether the firm regularly handles mesothelioma litigation rather than general personal injury work. Mesothelioma proceedings have specialist procedural rules, including provisions designed to prioritise living mesothelioma claims and enable the court to deal with liability and interim payments quickly in appropriate cases.
Frequently Asked Questions
1. Do I have to pay a mesothelioma solicitor upfront?
Usually not when the claim is accepted under a no win no fee CFA. The solicitor typically funds the legal work while the claim progresses. However, you should still confirm how third-party expenses such as medical reports and expert fees are financed because the precise arrangement varies between firms.
2. Will a solicitor automatically take 25% of my mesothelioma compensation?
No. The commonly discussed 25% limit relates to the standard post-2013 personal injury CFA regime and should not automatically be applied to mesothelioma proceedings. Mesothelioma claims retain a special costs position, so you need to examine the particular CFA rather than assuming a fixed deduction.
3. What is a success fee?
A success fee is an additional amount payable to a solicitor under a CFA when the agreed definition of success is achieved. In qualifying mesothelioma proceedings, the success fee may remain recoverable as part of the costs sought from the defendant, subject to the relevant rules and assessment.
4. What is the 27.5% mesothelioma success fee figure?
It refers to the historically preserved fixed recoverable success fee applicable to certain settled employers’ liability disease claims involving asbestos exposure. Importantly, it is calculated by reference to base legal costs rather than simply taking 27.5% of the claimant’s damages.
5. Can I keep 100% of my mesothelioma compensation?
It may be possible depending on the solicitor’s funding terms and the costs recovered from the defendant. Do not rely on a general assumption. Ask the firm to state explicitly whether any amount can be deducted from your damages and under which circumstances.
6. What happens to legal expenses if the claim fails?
The solicitor’s covered legal fee is normally waived under a CFA, but other potential expenses must be considered separately. Insurance may protect against specified costs and disbursements. The solicitor should explain your maximum possible financial exposure before you agree to proceed.
7. Can I cancel a no win no fee agreement?
You may be able to end the agreement, but cancellation can have financial consequences. Depending on when and why you terminate it, the firm may be entitled to seek payment for work already completed. Read the termination section before signing rather than waiting until a dispute occurs.
8. What if the defendant does not pay all my solicitor’s costs?
A difference may arise between the solicitor’s bill and the costs recovered from the defendant. Your CFA should explain whether the firm writes off this shortfall or has a contractual right to seek some amount from you. This is one of the most important questions to resolve in advance.
9. Can I challenge a solicitor’s bill if I think it is too high?
Yes. Clients in England and Wales can potentially seek a detailed assessment of a solicitor’s bill through the court. Strict time limits can affect the procedure, so concerns should normally be raised with the firm promptly before considering further action.
10. What is the most important question to ask a mesothelioma solicitor about costs?
Ask: “After every payment you expect to recover from the defendant, what is the maximum amount that could still be deducted from my compensation?” Request the answer in writing. This focuses on the claimant’s real financial outcome instead of an advertising phrase or an isolated percentage.
Conclusion
The real cost of hiring a mesothelioma solicitor on a no win no fee basis cannot be understood from the words “no win no fee” alone. Mesothelioma claims retain special costs rules that may allow legal costs, qualifying success fees and insurance premiums to be recovered from the defendant.
The safest approach is to examine the CFA closely and establish your maximum personal liability before signing. Ask specifically about compensation deductions, costs shortfalls, disbursements, insurance and cancellation charges. A transparent funding agreement should make the financial outcome understandable before legal work begins.
