Damages Based Agreements
DBAs are a relatively new option for funding litigation. In simple terms we agree with you the share of the damages that we will receive rather than charge you an hourly rate. For example if we agree to accept 40% of the sum paid that means you pay us nothing if you lose, £40,000 if your claim is completely successful (given your claim is for £100,000) or 40% of a partial success. For example if your claim is for £100,000 and you only succeed in getting £25,000 then you would pay us £10,000. Ultimately, if you don’t get paid we don’t get paid. You will be entitled to recover our reasonable costs, measured on a time basis, from your opponent which is likely to be less than the amount we charge you.
Under a DBA you always know you will only have to pay us if you get paid and you know it will be a fraction of the amount you get paid for damages and costs.
If the case settles early you end up paying more than you would using an hourly rate. If the case goes on for a long time you will probably pay less and if you lose you don’t pay at all.
A DBA is just one of a number of options we consider when trying to find the right way to fund litigation for our clients. In some cases it is the only way a claimant can afford to bring a claim.
In some cases, we can also obtain insurance to protect our clients from an order to pay their opponent’s legal costs if they lose and to insure any disbursements the client will need to pay for court fees, experts and barristers. This is called After the Event Insurance or ATE. The ATE insurance can also be on a no win no fee basis with a deferred premium. Therefore, a financially weak claimant using a DBA and ATE with a deferred premium can litigate knowing that if they win they will recover a fixed share of the damages and if they lose they will pay nothing whatsoever. Under such arrangements the claimant is known as a ‘super litigant’ because they have nothing to fear. Of course if they win they give up the extra costs of the DBA and ATE premium but for many instances this is considered the best commercial structure.
Whether a DBA is more suitable for you than a normal retainer, fixed fees or a No Win No Fee agreement depends on the facts of each case and your particular circumstances. We work with you to find the best value funding structure taking into account your particular needs and the financial strength of each party.
Above all by making our clients strong and by sharing their risk we get better results.
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