possible outcome of conflict or game

Forget it or fight

If you have not managed to settle your claim then your choices are either to:

  1. Forget it and write the claim off
  2. Fight

If you have got this far, you have probably decided to fight and that sees you enter litigation. You may be a defendant on the receiving end of litigation and this leaves you no choice.

The remaining parts of our series are divided into two:

  • Funding
  • Tips on controlling costs in the procedure

The process of working our way to trial in English civil procedure is a huge subject and our Court procedure guide runs to 3,800 pages or thereabouts. This is necessarily a brief look!


Before you get started, you need to clarify how you are going to pay for your litigation.

Plainly, what usually happens is that fees are paid month on month in accordance with estimates until the claim is resolved.

Increasingly, lawyers and clients embrace ways of paying which share risk, or acknowledge that there may need to be a lower price if the client is spending a very large amount of money in large complex and long running dispute, or sending many repeat instructions for his lawyers. There are many different species of funding arrangements but common examples are:

  • ‘No win, no fee’ agreements (known to lawyers as conditional fee agreements)
  • Part or ‘hybrid’ conditional fee agreements
  • Third party funding of a claim in return for a share of the winnings
  • Damages based agreements (where a lawyer takes a percentage of winnings on certain agreed and prescribed terms dependent on how much is won in damages)
  • Deferred or part deferred payment dependent on success.

All of these agreements have at least two common denominators that is:

  1. They will need to be money or assets from which the deferred payment is sure to be recovered; and
  2. They will almost always only be available if there is a decent chance of winning.

Remember, the fact your lawyer will not share the risk does not mean you have a poor case, but if you are concerned about costs, such agreements may be an option.

You need to understand however, when lawyers enter into these agreements there will always be a cost for the lawyer taking on the risk.

You manage the risk, you understand the ground rules and have been through the pre-action protocol. Now look out for part five of our series of blog posts ‘making litigation cheaper’ – tips to control costs in the procedure.

To view the previous parts of this series, please see the links below. For more information, email blogs@gateleyuk.com.

Part one – Advance risk management 

Part two – A few home truths and engaging your solicitor  

Part three – The pre-litigation process 

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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.