H418/01 - Private funding and access to justice

Paying privately and sharing risk

Private funding means paying for legal services without the state funding those services through legal aid. A client may use savings or income, obtain help through insurance or a trade union, or agree a lawful fee arrangement with a lawyer. Different routes move the cost or risk to different people; none should be assumed to cover every expense.

A lawyer may charge an hourly rate, a fixed fee for defined work, or an estimate. A fixed fee gives more predictability within its stated scope; an hourly rate makes the final total depend on work undertaken. An estimate is not necessarily a guaranteed maximum. A client should understand what is included, possible additional work and whether VAT and disbursements are covered. Disbursements are payments for items such as court fees or an expert's report. Costs owed to the opponent are a separate risk in proceedings where the relevant rules allow them. The SRA explains costs information.

Original example: Ruth is quoted a fixed £600 for reviewing a business agreement and giving written advice. That does not necessarily cover negotiations, starting proceedings or advocacy at a hearing. If the service later expands, the client needs a clear account of the revised costs. The sensible question is what work and risk the agreement covers, rather than whether the initial price looks low.

Legal expenses insurance can meet specified legal costs under a policy, often included in or added to household or motor insurance. The policy may restrict subject areas, impose a limit or excess, and require reasonable prospects of success. Existing cover should be checked before paying privately. Before-the-event insurance is taken out before the dispute; after-the-event insurance can be obtained after a dispute has arisen to cover specified litigation risks. Policy wording controls what is protected, and premiums may still be payable.

A trade union may provide legal advice or representation for members, particularly on employment matters, subject to its rules. Membership and a relevant dispute can make help accessible, but a union is not a general free legal service for everyone. Charities or professional bodies may also provide specialist support. Identifying an available organisation is only the first step; scope, eligibility, timing and capacity matter.

Conditional fees and their limits

A conditional fee agreement, or CFA, makes some or all of the lawyer's fees payable only in specified circumstances, commonly success. “No win, no fee” is a familiar description of one arrangement, not a promise that litigation can never cost the client anything. The written agreement defines success, the work covered and the consequences of different outcomes.

Under the Courts and Legal Services Act 1990, a CFA must satisfy statutory conditions, including being in writing and relating to permitted proceedings. Ordinary criminal proceedings and specified family proceedings cannot be funded by an enforceable CFA of this kind. A weak claim is not automatically taken on: the lawyer bears risk if payment depends on success and may refuse cases that appear too uncertain or uneconomic.

A success fee is an uplift on the lawyer's ordinary fees in specified circumstances. It is not automatically a percentage of the damages. The general maximum uplift is 100% of the ordinary fees. For personal-injury proceedings at first instance, an additional cap limits the success fee to 25% of the relevant damages, excluding future pecuniary loss and taking account of the statutory calculation. That is a cap, not a compulsory deduction of 25% in every case. Other fees, deductions and case types require separate consideration. The Conditional Fee Agreements Order 2013 sets the caps.

Since the main reforms in April 2013, the general rule is that the success fee is paid by the client rather than recovered from the losing opponent, with transitional and special exceptions. Ordinary recoverable costs are a different issue. A damages-based agreement instead calculates the lawyer's payment by reference to the money recovered under that agreement's rules. Do not confuse the two merely because both may be advertised as no win, no fee.

Original simplified illustration: a CFA specifies ordinary fees of £4,000 and a 50% success-fee uplift if the client wins. The uplift is £2,000, not 50% of the damages. If a personal-injury first-instance award includes £10,000 of damages within the statutory cap calculation and £20,000 for future pecuniary loss, the £2,000 success fee is below the £2,500 additional cap. The future-loss award does not increase that cap. The client's actual bill also depends on the agreed terms, VAT treatment and recoverable costs; this illustration isolates the distinction between the two limits.

If the claim fails, court fees, experts' fees, insurance premiums or the opponent's costs may still create liability, depending on the agreement and applicable costs rules. Insurance may reduce some risks but must be checked for exclusions. The crucial distinction is between the conditional lawyer's fee and all the other possible costs. The SRA warns against equating no fee with no cost.

Advice, pro bono work and representation

Free or supported services can help a person who cannot afford a private lawyer. Their functions differ: advice identifies rights and options; assistance may help prepare a document; representation means acting for the person in proceedings. Receiving one does not guarantee all three.

Pro bono means professional work supplied without charging the client. Solicitors, barristers and other professionals may volunteer directly or through organised services. Pro bono describes how the work is supplied; it does not identify a separate court system or remove professional obligations. A charity may also employ paid advisers while giving free help to the public.

The services' own descriptions help prevent overclaiming: Citizens Advice provides general free advice, Law Centres employ specialist professionals, and FRU describes its tribunal work and referral limits. A sensible answer matches the organisation to the person's actual need rather than simply listing names.

Original example: Omar needs to understand a benefits decision and prepare for an appeal. Citizens Advice or a Law Centre may help explain his options; FRU may provide representation if its conditions are met and a volunteer is available. In a separate serious civil hearing requiring specialist advocacy, an application to Advocate may be appropriate. Neither route guarantees assistance before a deadline. Early enquiry and suitable referral can matter as much as knowing the organisation's name.

These alternatives can resolve a problem before litigation, help a person understand procedure or supply skills they otherwise could not obtain. Their limitations are structural: voluntary help and charitable budgets cannot necessarily meet all unmet need. Referring a person to a service with no available capacity does not establish effective access.

What effective access requires

Access to justice is the practical ability to understand, assert or defend legal rights and obtain an appropriate resolution. Affordability is central, but it is not the only issue. A person also needs suitable information, relevant expertise, enough time, accessible procedures and a realistic route to enforce a remedy. A cheap service that cannot help before the hearing may offer little effective protection.

Private payment can give choice and continuity for clients who can afford it. CFAs can let a person with a promising claim obtain professional help without paying the lawyer's full fee at the outset; risk sharing may encourage the lawyer to assess the case carefully. Insurance, union help and advice agencies can provide additional routes. Early advice may prevent escalation and reduce the need for a trial.

However, each alternative leaves gaps. A client just above public-funding eligibility may still lack money for private fees. A CFA is less attractive where damages are small, the evidence is uncertain or the remedy is non-monetary; the lawyer's commercial risk is not the same as the social importance of a claim. Success fees may reduce the compensation available to the client. Insurance depends on prior cover and policy terms, while unions and charities serve defined groups and have finite capacity. Volunteering alone does not guarantee equal provision between areas.

In R (UNISON) v Lord Chancellor [2017] UKSC 51, the Supreme Court quashed the employment tribunal fees order because it unlawfully prevented access to justice. The Court explained that access to courts is inherent in the rule of law: rights need to be enforceable, and decisions benefit society beyond the immediate litigants. The decision concerned that fees regime; it did not abolish every court fee or create a general right to a free private lawyer. The Court's summary explains the holding.

Consider the claim that “CFAs and charities make public funding unnecessary.” It has some support: alternatives can successfully serve clients who lack public aid. But this does not show that they serve every kind of claim or every eligible person. A tenant seeking a non-monetary remedy may have an urgent and meritorious case without an attractive damages award, and a charity may be full. The strongest evaluation examines the gap between available routes and actual needs.

A reasoned judgment might favour a mixed system: public protection for urgent or socially important needs, private and risk-sharing funding where suitable, and sustainable free advice alongside them. Another view could argue for a different balance, but must address who pays, which clients remain excluded and how help becomes available in practice. Merely saying that more routes exist is insufficient evidence that access is equal.

Quick recap

Private funding, insurance, union support, CFAs and free advice share different costs and risks. No win, no fee does not necessarily mean no expense. Match advice agencies to the problem and distinguish advice from representation. Judge access by whether people can actually use their rights.