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No Win, No Fee Solicitor

  • 22-03-2011 2:52pm
    #1
    Closed Accounts Posts: 4


    Hi All,

    This is my first time on here so bare with me...

    I have 2 cases pending against my ex employer. Its with the EAT so I can represent myself but I would prefer representation. The cases, according to legal advise I sought this time last year are open and shut.

    I'm low in funds and Im looking for an employment law solicitor who would work on a no win, no fee or who wouldn't be looking for monies upfront. Is no win, no fee for injury cases only....

    Look forward to hearing from you!


«1

Comments

  • Registered Users, Registered Users 2 Posts: 1,074 ✭✭✭blueythebear


    isitme wrote: »
    Hi All,

    This is my first time on here so bare with me...

    I have 2 cases pending against my ex employer. Its with the EAT so I can represent myself but I would prefer representation. The cases, according to legal advise I sought this time last year are open and shut.

    I'm low in funds and Im looking for an employment law solicitor who would work on a no win, no fee or who wouldn't be looking for monies upfront. Is no win, no fee for injury cases only....

    Look forward to hearing from you!

    You have a problem in that the EAT does not award legal costs, therefore any legal costs would have to come out of any award you receive. Then there is the question of whether the employerwill comply with the award of the EAT. Enforcement is a long process in most cases and will result in further fees from your solicitor.

    If it's no win no fee, expect a large chunk of your award to be eaten up in legal fees. €1,000 would probably cover you for an EAT hearing on an upfront basis (depending on complexity) but it'll probably be more on a successful outcome of a no win, no fee case.


  • Banned (with Prison Access) Posts: 987 ✭✭✭Kosseegan


    When enquiring about solicitors you shoud say what part of the country you are in. It can be easier to get bargain basement solicitors in Dublin.


  • Closed Accounts Posts: 2 Liam Cork


    You would need to provide more information about the type of case. In the current environment if you have a good case you will probably find a number of Solicitors who will represent you on such a basis. Just make sure you get the agreement on fees set out clearly in writing as a precaution.


  • Registered Users Posts: 39 burkulosis


    theres a chap in waterford *snip* [who] is a qualified solicitor but is not practicing as one at present so Im thinking his fees would be lower. Ive heard he's very good, might be worth getting in touch with him.

    Best of luck with it


    MOD EDIT: As per charter the recommendations may be sought in open forum, but names must be supplied via PM


  • Registered Users, Registered Users 2 Posts: 3,472 ✭✭✭Grolschevik


    burkulosis wrote: »
    theres a chap in waterford *snip* [who] is a qualified solicitor but is not practicing as one at present so

    [

    If he's not practising, he may not have a paid-up practising cert, and so cannot actually practise as a solicitor...


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  • Registered Users Posts: 39 burkulosis


    [QUOTE=
    MOD EDIT: As per charter the recommendations may be sought in open forum, but names must be supplied via PM[/QUOTE]


    apologies, am new to posting here! pm me if you want his/his company's name

    as regards the comment about the practicing certificate, you dont have to be a solicitor to represent at EAT level. thats why i was recommending that person as he is a trained solicitor, but not practicing as one (so you dont have to pay over the odds for representation, yet you will get proper representation)


  • Registered Users, Registered Users 2 Posts: 1,074 ✭✭✭blueythebear


    burkulosis wrote: »
    apologies, am new to posting here! pm me if you want his/his company's name

    as regards the comment about the practicing certificate, you dont have to be a solicitor to represent at EAT level. thats why i was recommending that person as he is a trained solicitor, but not practicing as one (so you dont have to pay over the odds for representation, yet you will get proper representation)

    If he is working for a solicitors firm then he will charge you the standard rate, practising cert or not. Newly qualified solicitors often do not have practising certs yet will charge as per a qualified practising solicitor.

    If this individual is not with a firm and the idea is for him to represent you himself, I would imagine he should be very reluctant to do so to avoid a professional negligence scenario arising (as he won't have professional indemnity insurance cover) if he puts foot wrong (or if his client is of the litigious sort).


  • Registered Users Posts: 39 burkulosis


    nope, not in a solicitors firm, he set up his own employment advice company and represents at EAT's and Labour Commissions..... anyway, i think this thread is going a bit off topic. original poster - feel free to pm me for his details if you think he can help. if not, best of luck with your hearing :)


  • Registered Users, Registered Users 2 Posts: 20,397 ✭✭✭✭FreudianSlippers


    I think it's only correct that the OP be informed of the possible pitfalls of hiring a solicitor without a practising certification regardless of number of years qualified or specific other circumstances.

    However, the OP sought information and that information has been provided. OP can now make that decision on his/her own.


  • Banned (with Prison Access) Posts: 987 ✭✭✭Kosseegan


    burkulosis wrote: »
    apologies, am new to posting here! pm me if you want his/his company's name

    as regards the comment about the practicing certificate, you dont have to be a solicitor to represent at EAT level. thats why i was recommending that person as he is a trained solicitor, but not practicing as one (so you dont have to pay over the odds for representation, yet you will get proper representation)

    No practicing Cert means no professional indemnity cover. It is also a criminal offence for a person with no practicing certificate to hold themselves out as a solicitor.


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  • Registered Users, Registered Users 2 Posts: 78,495 ✭✭✭✭Victor


    burkulosis wrote: »
    as regards the comment about the practicing certificate, you dont have to be a solicitor to represent at EAT level. thats why i was recommending that person as he is a trained solicitor, but not practicing as one (so you dont have to pay over the odds for representation, yet you will get proper representation)
    That's like an insurance company with insufficient reserves saying "yeah, no matter what happens you're covered" and then there is a massive event that exhausts those reserves and the insured is screwed.


  • Registered Users, Registered Users 2 Posts: 29 arienlass


    Hi can I ask if a case is taken on as a no win no fee and the solicitor puts it through the injuries board and the injuries board dont award anything, then is it right that the solicitor comes back and says that we have to pay his fees? I am confused about all this


  • Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    arienlass wrote: »
    Hi can I ask if a case is taken on as a no win no fee and the solicitor puts it through the injuries board and the injuries board dont award anything, then is it right that the solicitor comes back and says that we have to pay his fees? I am confused about all this

    I know of no solicitor who would take on a case on that basis. A solicitor would take on a injuries case on the basis that if no win in Injuries Board then it would go to court. Is it that the IB has given authorisation but you don't want to go to court, or is it your solicitor does not want to go to court.


  • Registered Users, Registered Users 2 Posts: 2,983 ✭✭✭McCrack


    arienlass wrote: »
    Hi can I ask if a case is taken on as a no win no fee and the solicitor puts it through the injuries board and the injuries board dont award anything, then is it right that the solicitor comes back and says that we have to pay his fees? I am confused about all this

    This is another example of why the whole injuries board process is a sham and anti-injured person.

    Essentially the law provides that an injured person cannot recover their legal costs for the injuries board work that your solicitor does so it falls to the injured person to pay their solicitor (if he/she chooses to charge for it).

    So yes it would be normal to pay your solicitor for the injuries board application aspect of your claim.


  • Registered Users, Registered Users 2 Posts: 29 arienlass


    Hi, I knew we would have to pay the initial fee for the claim which we have done. The IB had not received consent or a refusal from the respondant to the making of an assessment of our claim the IB issued an Authorisation Cert to go to court. I am worried about the extra cost this is going to incur. The solicitor does not give us any idea whether we have a good case or not, saying its a gamble. I really dont know what to do. If we stop now we have bills to pay a dentist and also bills to solicitor for medical reports and other investigations, if we go ahead to court we will have much larger expenses as a barrister will probably be involved.


  • Registered Users, Registered Users 2 Posts: 2,983 ✭✭✭McCrack


    You need to discuss your case prospects with your solicitor and make a decision whether to sue or not.


  • Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    arienlass wrote: »
    Hi, I knew we would have to pay the initial fee for the claim which we have done. The IB had not received consent or a refusal from the respondant to the making of an assessment of our claim the IB issued an Authorisation Cert to go to court. I am worried about the extra cost this is going to incur. The solicitor does not give us any idea whether we have a good case or not, saying its a gamble. I really dont know what to do. If we stop now we have bills to pay a dentist and also bills to solicitor for medical reports and other investigations, if we go ahead to court we will have much larger expenses as a barrister will probably be involved.

    Well you have neither won nor lost, so if you want out I would think you have to pay for work todate. But your solicitor would not want to continue on no foal no fee unless he believed you have a reasonable case. But best bet is arrange a meeting to get all the facts, then decide.


  • Registered Users, Registered Users 2 Posts: 29 arienlass


    Thanks for your help everyone :)


  • Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    Since the OP's question appears to have been answered, there is another relevant aspect to the question s/he raises.

    Has "no foal, no fee" ever been enforced by an Irish court?

    I'm not sure if our system condones "no foal no fee", or whether the courts just haven't had their chance to express indignation at it yet, like our English counterparts.


  • Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Since the OP's question appears to have been answered, there is another relevant aspect to the question s/he raises.

    Has "no foal, no fee" ever been enforced by an Irish court?

    I'm not sure if our system condones "no foal no fee", or whether the courts just haven't had their chance to express indignation at it yet, like our English counterparts.


    See Synnott (t/a D.J. Synnott Solicitors) v Adekoya [2010] IEHC 26


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  • Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    In Synnott v. Adekoya, as in a small number of similar Irish cases, the court started from the assumption that No Foal No Fee arrangement was legally sound. The judgement was per incuriam since the relevant authorities on the underlying legality were not opened to the court.

    If the courts have altered the meaning of champerty beyond its traditional, broader scope in Pittman v Prudential Deposit Bank Ltd (1896) 13 TLR 110, and up until the present day, see Lord Neuberger's comments in Sibthorpe v. Southwark LBC [2011] 1 WLR 2111, then that would have to be clearly ruled upon, or provided for by statute. Neither has happened in this jurisdiction, as far as I am aware.

    Although I accept that champerty has evolved, I don't accept that it has withered to the point where No Foal No Fee arrangements are entirely legal.


  • Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    In Synnott v. Adekoya, as in a small number of similar Irish cases, the court started from the assumption that No Foal No Fee arrangement was legally sound. The judgement was per incuriam since the relevant authorities on the underlying legality were not opened to the court.

    If the courts have altered the meaning of champerty beyond its traditional, broader scope in Pittman v Prudential Deposit Bank Ltd (1896) 13 TLR 110, and up until the present day, see Lord Neuberger's comments in Sibthorpe v. Southwark LBC [2011] 1 WLR 2111, then that would have to be clearly ruled upon, or provided for by statute. Neither has happened in this jurisdiction, as far as I am aware.

    Although I accept that champerty has evolved, I don't accept that it has withered to the point where No Foal No Fee arrangements are entirely legal.

    Champerty and no foal no fee while they can intersect, are in my opinion two very different beasts. I have heard of more and more solicitors not using the term no foal no fee, as they worry about taxation.

    I believe but have no reference to a case, where taxation of costs where refused as the matter was no foal no fee. I accept that some arrangements while called no foal no fee are in fact champerty, but no foal no fee is prevelant outside the PI area, many good judicial review cases are taken on such basis, if lawyers did not do so many a case would be excluded from litigation.

    As friend of mine calls it contingent legal aid.

    My own view is the irish courts will not challenge no foal no fee, as long as the line between acces to justice and champerty is not crossed.


  • Registered Users, Registered Users 2 Posts: 2,983 ✭✭✭McCrack


    No win no fee is a misnomer. It doesn't exist.

    A client may come to such an arrangement with his own solicitor but costs follow the event so if he loses he's liable for the other side's costs.

    I failing to see how the courts would "express indignation" at what is a personal/private arrangement between a client and a solicitor.


  • Banned (with Prison Access) Posts: 3,126 ✭✭✭Santa Cruz


    The NO Foal NO Fee is only a scam. He will make sure that you are charged for barristers costs, secretarial costs in which he will have his fee hidden


  • Registered Users, Registered Users 2 Posts: 2,983 ✭✭✭McCrack


    Santa Cruz wrote: »
    The NO Foal NO Fee is only a scam. He will make sure that you are charged for barristers costs, secretarial costs in which he will have his fee hidden

    What?


  • Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    infosys wrote: »
    Champerty and no foal no fee while they can intersect, are in my opinion two very different beasts.
    That may be the case. It just hasn't been clarified, either with regard to case law or statute in this jurisdiction. Prior to 1990, when UK law was updated to allow for contingent fees, "no foal no fee" was fairly consistently referred to as champerty in the English courts.

    We didn't reform the Irish law on champerty like the UK did, and No Foal No Fee has never really been tested here.

    I am in favour of No Foal No Fee systems. Contingent legal aid is a good way of looking at it, as you said. Nevertheless, based on the principle that the courts should not disturb the common law in an arbitrary, random manner, or without an explicit statutory reason, I see no reason to believe that NFNF can not, as it had been consistently held to be in the UK 1990, give rise to a criminal and tortious liability in champerty.
    I have heard of more and more solicitors not using the term no foal no fee, as they worry about taxation.
    Yep, another reason to be wary of NFNF.
    McCrack wrote: »
    I failing to see how the courts would "express indignation" at what is a personal/private arrangement between a client and a solicitor.
    What a strange comment.
    Prostitution is a personal arrangement between a client and a prostitute, as is the sale of organs or a private adoption. The courts regularly stick an oar into personal transactions and express criticisms; a good thing it is, too.

    Like I said the issue hasn't explicitly come before the Irish courts. The English couts have been very critical, but less so since legislative reform in that jurisdiction.


  • Registered Users, Registered Users 2 Posts: 29 arienlass


    Solicitors should not tell the client that they be expecting the IB to award a sum of money if they genuinely have no idea.Then tell a student that its gonna be a no win no fee, giving the student the impression that he/she will have no expense to pay as it will come out of the awarded amount. We feel we have been conned cos if we stop now we have the solicitor fees to pay and if we go to court we have much larger costs. If the solicitor had been upfront about this at the start we would have sent the claim to the injuries board ourselves. Feel like going to the Law Society about it all now to be honest


  • Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    That may be the case. It just hasn't been clarified, either with regard to case law or statute in this jurisdiction. Prior to 1990, when UK law was updated to allow for contingent fees, "no foal no fee" was fairly consistently referred to as champerty in the English courts.

    We didn't reform the Irish law on champerty like the UK did, and No Foal No Fee has never really been tested here.

    I am in favour of No Foal No Fee systems. Contingent legal aid is a good way of looking at it, as you said. Nevertheless, based on the principle that the courts should not disturb the common law in an arbitrary, random manner, or without an explicit statutory reason, I see no reason to believe that NFNF can not, as it had been consistently held to be in the UK 1990, give rise to a criminal and tortious liability in champerty.

    Yep, another reason to be wary of NFNF.


    What a strange comment.
    Prostitution is a personal arrangement between a client and a prostitute, as is the sale of organs or a private adoption. The courts regularly stick an oar into personal transactions and express criticisms; a good thing it is, too.

    Like I said the issue hasn't explicitly come before the Irish courts. The English couts have been very critical, but less so since legislative reform in that jurisdiction.

    I do agree with you and what some claim is no foal no fee is in reality champerty. But by and large most cases in ireland are above board, but the right case, with the wrong facts could very well leave a solicitor in trouble. Its a fine line between assisting indigent litigants and unlawful promotion of litigation.


  • Registered Users, Registered Users 2 Posts: 2,983 ✭✭✭McCrack


    It's a matter of contact between a solicitor and his client what arrangement they come to with regard to solicitor/client fees.

    If a solicitor agrees to take a case on a no win win no fee he is entitled to come to that arrangement with his client.

    There is nothing improper with this and nothing that the courts would or should interfere with.


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  • Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    McCrack wrote: »
    It's a matter of contact between a solicitor and his client what arrangement they come to with regard to solicitor/client fees.

    If a solicitor agrees to take a case on a no win win no fee he is entitled to come to that arrangement with his client.

    There is nothing improper with this and nothing that the courts would or should interfere with.
    But you're just repeating yourself. On the one hand you're ignoring the relevant case law (only some of which, above) of a well established common law tradition, and on the other hand ignoring the lack of legislative sanction, and ignoring the lack of any Irish authority abolishing or disturbing the law on champerty.

    I think it's merely quite possible that NFNF comes under champerty, as is the long established tradition of other common law jurisdictions prior to statutory legislation.

    What makes you so sure you're right?


  • Registered Users, Registered Users 2 Posts: 2,983 ✭✭✭McCrack


    But you're just repeating yourself. On the one hand you're ignoring the relevant case law (only some of which, above) of a well established common law tradition, and on the other hand ignoring the lack of legislative sanction, and ignoring the lack of any Irish authority abolishing or disturbing the law on champerty.

    Yes and it looks like I have to repeat myself again:

    A No win no fee arrangement is a contact matter between a solicitor and his client. Perfectly lawful and enforceable.

    It is not champerty. Champerty is an agreement to take solicitor/client fees from the settlement/award.


  • Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    McCrack wrote: »
    Yes and it looks like I have to repeat myself again:
    And what do you say about the case law that completely disagrees with you?


  • Registered Users, Registered Users 2 Posts: 2,983 ✭✭✭McCrack


    I don't know of any case law in this jurisdiction that says a NWNF solicitor/client contractual arrangement is champerty.

    I would of course be obliged if you can link any.


  • Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    McCrack wrote: »
    I don't know of any case law in this jurisdiction that says a NWNF solicitor/client contractual arrangement is champerty.

    I would of course be obliged if you can link any.
    Are you aware that this is a common law jurisdiction?

    As is standard, especially in an offence at common law when there is a lack of domestic authority, and a near-absence of statutory legislation, we can look to other jurisdictions. There is a consistent theme of contingent fee arrangements coming under champerty, unless and until clearly displaced by statute.

    This is why I say that it appears to me quite possible that NFNF gives rise to a liability under champerty.

    What do you have to substantiate the claim that an internet poster called McCrack is right and some of the greatest minds in English jurisprudence were wrong?


  • Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    McCrack wrote: »
    I don't know of any case law in this jurisdiction that says a NWNF solicitor/client contractual arrangement is champerty.

    I would of course be obliged if you can link any.

    Any case involving heir hunting is champerty in this jurisdiction I believe. Fraser v. Buckle [1996] 1 IR 1, it is contract between two people for the provision of a service. The big difference between such case and normal cases, is in a PI solicitor is not rewarded out of award but from a cost order.


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  • Registered Users, Registered Users 2 Posts: 2,983 ✭✭✭McCrack


    Are you aware that this is a common law jurisdiction?

    As is standard, especially in an offence at common law when there is a lack of domestic authority, and a near-absence of statutory legislation, we can look to other jurisdictions. There is a consistent theme of contingent fee arrangements coming under champerty, unless and until clearly displaced by statute.

    This is why I say that it appears to me quite possible that NFNF gives rise to a liability under champerty.

    What do you have to substantiate the claim that an internet poster called McCrack is right and some of the greatest minds in English jurisprudence were wrong?

    Alright OK so you have read some persuasive authority from a CL jurisdiction that says a NWNF contractual arrangement amounts to champerty.

    Notwithstanding your assertions I'll continue to come to such arrangements with my clients where appropriate.


  • Registered Users, Registered Users 2 Posts: 2,983 ✭✭✭McCrack


    infosys wrote: »
    Any case involving heir hunting is champerty in this jurisdiction I believe. Fraser v. Buckle [1996] 1 IR 1, it is contract between two people for the provision of a service. The big difference between such case and normal cases, is in a PI solicitor is not rewarded out of award but from a cost order.

    Yes costs order will cover party/party costs but not solicitor/client costs, in PI that will be the PIAB work. Most client's will pay that out of their settlement/award.


  • Registered Users, Registered Users 2 Posts: 1,073 ✭✭✭littlemac1980


    Here's an extract from the Law Society's Guidance on Renewal of PII.

    "This question deals with “no foal, no fee” arrangements. It should be noted
    that these arrangements are not prohibited. This question is included as
    these types of arrangements have been in some cases a source of claims in
    the past. Solicitors should ensure that they comply fully with Section 68 of
    the Solicitors (Amendment) Act 1994 in these cases."


    The Law society guidance notes refer to "No Foal, no fee" arrangements in many places.

    Those arrangements are not contrary to any law in Ireland - Statutory or otherwise.

    An agreement to waive a professional fee on a contingent event, even if made in advance, is nothing more than a contractual arrangement between the solicitor and client.

    The main issue that arises in relation to such arrangements is whether or not the position in relation to the other parties costs has been properly explained, and the fact of third party/expert/counsel fees are also properly advised upon.


  • Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    McCrack wrote: »
    Alright OK so you have read some persuasive authority from a CL jurisdiction that says a NWNF contractual arrangement amounts to champerty.

    Notwithstanding your assertions I'll continue to come to such arrangements with my clients where appropriate.

    I'm trying to find a reference, but in the back of my mind was a taxation of costs case, where no foal no fee became an issue and if I remember correctly no costs awarded. If I find the reference ill post it.


  • Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,750 Admin ✭✭✭✭✭hullaballoo


    http://goo.gl/RYaL9H

    Thema International Fund plc. v. HSBC Institutional Trust Services (Ireland) Limited [2011] IEHC 357, [2011] 3 I.R. 654 affirms that Champerty and Maintenance still exist in Irish law. There may be difference between the tort of Champerty and Maintenance and No Foal, No Fee; the two can be conflated by a lack of understanding. Champerty and Maintenance, in simple terms, means a third party funding litigation in the hope of turning a profit. That seems to me to be different to the manner in which No Foal, No Fee operates here in general.

    As a general rule, NFNF is quite a restricted arrangement here. My understanding is that the solicitor agrees to waive his/her own fee if the client loses in court. The agreement does not mean that the solicitor agrees to take on the expense of litigation (stamp duty, expert reports etc.), for which the client agrees s/he will be directly liable.

    I could be completely misunderstanding the manner in which NFNF operates in general in Ireland but it is at least open for debate that NFNF (in Ireland) does not equate to funding litigation for profit.


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  • Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    McCrack wrote: »
    Yes costs order will cover party/party costs but not solicitor/client costs, in PI that will be the PIAB work. Most client's will pay that out of their settlement/award.

    Of course such amount can not be % of the award! such would be thin ice.


  • Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    McCrack wrote: »
    Yes costs order will cover party/party costs but not solicitor/client costs, in PI that will be the PIAB work. Most client's will pay that out of their settlement/award.

    I also always find it funny, in such cases, counsel accepts the agreed costs on a party/part basis, but not always the case for solicitors, the life of counsel, always the bridesmaid never the bride.


  • Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,750 Admin ✭✭✭✭✭hullaballoo


    infosys wrote: »
    I also always find it funny, in such cases, counsel accepts the agreed costs on a party/part basis, but not always the case for solicitors, the life of counsel, always the bridesmaid never the bride.
    Is that why we have to wear the ugly gowns?


  • Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Is that why we have to wear the ugly gowns?

    So true.


  • Registered Users, Registered Users 2 Posts: 2,983 ✭✭✭McCrack


    infosys wrote: »
    I also always find it funny, in such cases, counsel accepts the agreed costs on a party/part basis, but not always the case for solicitors, the life of counsel, always the bridesmaid never the bride.

    Yes but solicitors are the agents that recover counsel's fees on their behalf either through negotiation or Taxation. Counsel have no direct say in negotiation.

    I mean the trade off you could say that counsel might only get to meet the "querist" once at a pre-trial consultation whereas we might to put up with them 5 days out of 7! Don't get me wrong though, most are great, it's only a handful that can break you!.


  • Moderators, Entertainment Moderators, Politics Moderators Posts: 14,535 Mod ✭✭✭✭johnnyskeleton


    Since the OP's question appears to have been answered, there is another relevant aspect to the question s/he raises.

    Has "no foal, no fee" ever been enforced by an Irish court?

    I'm not sure if our system condones "no foal no fee", or whether the courts just haven't had their chance to express indignation at it yet, like our English counterparts.

    It's expressly recognised as a prinicple of the taxation of fees that in cases taken on a no win no fee basis there can be a mark up to compensate for the uncertainty of payment.

    It's perfectly legitimate as a collateral contract with a client that in the event that they cannot afford to pay the solicitors fees at the end, that they will not be sued etc.


  • Moderators, Entertainment Moderators, Politics Moderators Posts: 14,535 Mod ✭✭✭✭johnnyskeleton


    What do you have to substantiate the claim that an internet poster called McCrack is right and some of the greatest minds in English jurisprudence were wrong?

    We have constitutional rights that can defeat any pre bne rule of law. If no win no fee arrangements were illegal as common law torts/crimes, it would probably not have survived the enactment of articles 40 and 43 and the right to earn a livelihood.


  • Moderators, Entertainment Moderators, Politics Moderators Posts: 14,535 Mod ✭✭✭✭johnnyskeleton


    infosys wrote: »
    I also always find it funny, in such cases, counsel accepts the agreed costs on a party/part basis, but not always the case for solicitors, the life of counsel, always the bridesmaid never the bride.

    Not always, but since there is no right to sue all they can do is report the solicitor to the law soc.


  • Registered Users, Registered Users 2 Posts: 1,529 ✭✭✭234


    McCrack wrote: »
    Yes but solicitors are the agents that recover counsel's fees on their behalf either through negotiation or Taxation. Counsel have no direct say in negotiation.

    Though one of the provisions of the Legal Services Bill (I'm to lazy to locate the section), if passed, implies that counsel are to bill clients directly. This could actually improve the lot of junior members of the profession in some cases where solicitors take a somewhat "relaxed" attitude to paying counsel.


  • Closed Accounts Posts: 3,648 ✭✭✭Cody Pomeray


    It's expressly recognised as a prinicple of the taxation of fees that in cases taken on a no win no fee basis there can be a mark up to compensate for the uncertainty of payment.
    I accept this happens, nevertheless infosys has correctly pointed to occasions in this jurisdiction where the other side was not obliged to discharge costs for which the successful party would not be held liable, if the successful party had failed.

    While this is of interest in itself, I don't believe questions surrounding taxation are a useful authority in determining the legal status of NFNFs, a question which, and whose corresponding authorities (I am open to correction), have never been opened to the courts.
    We have constitutional rights that can defeat any pre bne rule of law. If no win no fee arrangements were illegal as common law torts/crimes, it would probably not have survived the enactment of articles 40 and 43 and the right to earn a livelihood.
    I had intended to raise this earlier. You are quite right; a persuasive argument can be made that any ban on contingent fees might not have survived the Constitution. In fact, this is the most compelling argument opposing a ban on such arrangements, and the only rational one that has been put forward in this thread. This alone, I believe, would explain the Irish divergence from the rest of the common law world.

    Nevertheless, in the absence of any authorities, the route the courts would take here is unpredictable.

    The right to earn a living is contingent on the common good. I cannot go and land 300 Yanks on Sceilig Mhichíl every morning, as per Casey v. the Minister for Arts etc. because there is a greater public policy interest trumping my right to earn a living.

    So what is the public policy interest in restricting NFNF arrangements? If NFNF were challenged 60 or 40 or 20 years ago, I have little doubt but that the arrangement would have been confirmed as champerty, in keeping with the rest of the common law world. At that time, litigation was seen as undesirable pursuit, best avoided. That attitude is not totally extinct, as has been implied in some comments from the bench, and as is implied by statute (extant ban on solicitors touting in hospitals, or advertising NFNF in the yellow pages).

    So I suggest you have a strong point on the constitutional right to a livelihood, but I would not be confident that the NFNF arrangement, even in its most carefully worded form, would be given the blessing of the Irish courts in the absence of any statutory backing for NFNF which, I think, is badly needed.


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