Conditional fee agreements are agreements between a client and lawyer which mean that you pay us less (or nothing, depending on what is agreed) if you lose a case, but a full fee (usually with a “success fee” or "uplift": again, subject to agreement) if you win.

They are sometimes called “no-win, no-fee” agreements, though we prefer the client to take at least part of the risk – for example, paying half normal fees in any event but full fees, plus a success fee on the balance at risk if you win.

(CFAs are a similar concept to “contingency fees” used in other jurisdictions. Those however involve taking a slice of the damages if one is successful. They are not presently used in the UK and in any event would not normally apply in public law work because damages are not usually recovered in such cases.)

If you win, you can usually recover most of your costs from the other side, including the uplift and insurance you may have taken out to cover the costs in the event of losing. In environmental and other public law cases, you are normally looking for a decision to be quashed (i.e. nullified) by the court, rather than recovering damages. The prospect of having to pay this (potentially expensive) uplift used therefore to be a deterrent to entering into these types of arrangement, because it could not be recovered from the other side. The law changed in 2000 such that it can be recovered. Conditional fees are therefore more attractive than they used to be for both clients and lawyers. (Insurance premiums can also be recovered)

Conditional fee agreements must be in writing and the agreement must deal with various specific points, as laid down in regulations. A potentially difficult issue is how to decide what "success" means. Wrestling with this has caused some agreements that lawyers have produced to be almost incomprehensible. We take the approach that the priority is for the client to understand what the agreement means. We therefore normally manage to reduce it to a letter of a couple of pages but cross referring to the relevant regulations. We have never had a client, or a situation, where it was not possible to determine whether we had been successful or not. Like an elephant, success can be hard to describe but easy to recognise. In practice it will usually be a situation where costs are ordered to be paid by the other side. Most litigation we do is against government and other public bodies, so one does not run into the problem of the other side being unable to pay costs.

Counsel and (less commonly) experts may agree also to work on a conditional basis. Usually we expect the client to pay for disbursements such as an insurance premium, court fees, etc., but again this can be discussed. Overall, when considering whether to enter a CFA, one has to strike a balance between what makes sense for us and the client, what the client can afford, and the need for the client to have a stake in the matter.