“No win, no fee” (sometimes described as “no foal, no fee”) is the way most accident claims or medical negligence claims in Ireland are taken. The solicitors and the barristers are only paid if the case is successful. The flip side of this is that they will only take the case if they think it is a good one. However, the legislation governing how solicitors operate makes it illegal for solicitors to advertise on this basis…Go figure!
So what this means is that I as a solicitor cannot take out an ad offering my services to you on a no win, no fee basis. It does not mean that I cannot provide services to you on this basis, because that is exactly what I do for clients every day. It does not mean that we cannot have a discussion about it, such as what we are doing here. It’s a pretty silly regulation when you think about it.
The background to the regulation is that in the past solicitors were not allowed to advertise at all. In the good old days the public were expected to discover by divine inspiration how solicitors operated. This suited the old established operators, because you pretty much had to take it the way they wanted to give it. It prevented newcomers from innovating and changing the way legal services were provided and then telling people about it. Surprise, surprise: it was anti-competitive.
So they had to allow solicitors to advertise, but in doing so the massive vested interest that is the legal establishment decided to prevent advertising on the basis of “no win, no fee” or “no foal, no fee” or words to that effect.
One might be forgiven for thinking: “Yea, well that’s good – it stops ambulance chasers and other shysters from promoting dodgy claims.” Well, with all due respect to the legal establishment, that was pretty lazy thinking. Preventing respectable professionals from telling genuine people who have suffered injury or loss because of accidents or medical negligence that were not their fault of their entitlements and how those professionals may be prepared to help them is not going to do anything about the ambulance chasers or the shysters. In fact, it might allow the general public to have a better idea of how to avoid them, in allowing the honest professionals to describe accurately and honestly how their services work.
I’m a highly skilled and highly qualified lawyer with over 10 years’ experience. My most valuable assets are my integrity and self respect. I am not going to take on a claim that’s dodgy. I’ve also got bills to pay and a business to run, so I expect to be paid properly for what I do and I’m not going to waste my time.
If somebody comes to me having suffered an accident or medical negligence I’ll meet them and go through what happened to them in detail at no cost. I’ll investigate what happened and, if necessary, get an opinion from a barrister, again at no cost. If at that stage, I come to the conclusion that the person does not have a case, or is unlikely to be successful in their case, I will not take the claim on and I will explain to the person in detail why not. That person will walk away with nothing to pay and is perfectly entitled to seek a second opinion if they don’t like mine.
On the other hand, if the person has a case because they have suffered injury or loss due to an accident or a medical negligence event that was not their fault, I will be prepared to act for that person on the basis that I will only get paid for what I do if the person’s claim is successful and I will provide the person with a written guarantee to that effect. Terms and conditions will apply, but as the nice man in the ad for the bank says, no sneaky ones!
When you think about it, if lawyers weren’t willing to work on this basis, serious injustices would result. Imagine, for instance, a case where a child is injured at birth with lifelong consequences because somebody didn’t take appropriate care during the delivery. That child or the child’s parents are not going to be able to fund expensive lawyers’ fees upfront. If they were unable to bring a case because of that fact, this would suit the person who was responsible and their insurance company very well, as it would result in an awful lot less claims.
On a more practical level, if someone is injured in a road traffic accident or an accident at work that was not their fault, and they find themselves out of work as a result, they are not going to be in a position to afford even modest outlay to see if they have a case. If they had to pay upfront to investigate whether they were entitled to bring a claim, most just wouldn’t be able to.
The way the insurance industry works is that if you have suffered a genuine loss you have to bring a claim to recover it. However, it pays the insurance industry to drive down the cost of claims by portraying the very act of bringing a claim in an unfavourable light. Those ads on the radio for the guy putting his hand in your pocket: you guessed it – they’re funded by the insurance business. Just recognize it for what it is.
Bear in mind too that the insurance industry is perhaps the biggest and most well funded interest group in our society today. They do a very good job at putting a message out there that there’s something vaguely dishonest about this whole claims business.
Of course bringing a false or exaggerated claim is dishonest and illegal. Those who do so face the risk of having to pay the entire legal costs of the person against whom they have falsely claimed. They can (and should) also be prosecuted. But genuine people who have suffered injury or loss because of someone else’s negligence are entitled to be compensated and they should not make any apologies for doing so.
So, most accident claims and medical negligence claims are taken on a no win, no fee basis. As a profession that is what we do. Just don’t tell anyone we told you so!
“In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.”