No Win No Fee Policy

Paying your fees

It is in bad taste to refuse to pay your legal fees. Your lawyer jumps through fire hoops for you including being thoroughly humiliated and getting dressed down by judges in open court. Fighting with your lawyer looks ugly and is actually very costly in the long run. If they know how to chase your debts to the ends of the earth for you they certainly know know how to go after you for their own. While it is encouraged to pay your lawyer’s fees you should not just take the lawyers word for it if you think you have been overcharged. Lawyers should account for the use of their time and clients have a right to request an itemised statement of account to see how the claim if justified. Disgruntled clients are entitled to take the bill through a court procedure called taxation at the court where the matter was heard. Both parties will appear before a taxing officer to interrogate the itemised bill of costs. The lawyer will have to defend and justify the bill and may or may not concede to knocking off some items. The taxing officer will use his or her discretion to remove or even add certain items to the bill. The final fee reached is called the taxed costs and this becomes an order of court and is executable like any other order if it remains unpaid. If the stalemate persists either side can appeal against the taxed costs.

Does a ‘no win no fee’ system apply in Zimbabwe?

This is known as a Contingency Fees Arrangement. It was until recently a grey area in our practice but has been clarified by Statutory Instrument 154 0f 2014. The client pays legal fees only when their matter succeeds and they have been awarded the payment or compensation they were pursuing through litigation. The client and lawyer negotiate fees as a percentage of the award or agree on a set amount. The percentage is not allowed to exceed 25 % of any award given or to be more than 200% of the legal fees that would have been ordinarily payable under normal billing. Obviously if the case is lost the client will not pay legal fees except necessary administrative costs. No win no fee arrangements work best when a definite monetary value can be attached to the final outcome of the case unlike an order to do or not do something. These arrangements are a positive development and are encouraging to people sitting on potentially viable legal and claims but dreading the thought of paying legal fees. Ideally the lawyer too will work extra hard for his or her supper otherwise they go to bed hungry.

Some conditions attached to these arrangements

They can only be entered into if the legal practitioner believes there are realistic prospects of success in the litigation proceedings. The agreement and all alterations have to be strictly in writing. The agreement should still state what the normal fees would have been on the ordinary billing. The client must also agree beforehand to pay their opponent’s costs in the event of losing the case. The agreement should state what constitutes success or partial success and how partial success will be paid. The matter may still be settled out of court so the agreement should factor in that possibility. The client is free to pull out of the arrangement but should give seven days’ notice and pay the lawyer for attendances incurred up to that date. So if you are sitting on a matter which you believe is potentially viable and credible and is less than three years old go and talk to a lawyer to see if you can work something out.

Miriam Tose Majome is a lawyer and a teacher. She writes in her personal capacity and can be contacted on enquiries@legalpractitioners.org