In many but not all cases, injured people are entitled to recover some of their legal costs from the negligent respondent or defendant.
Different rules or laws apply depending on the circumstances of the case and which particular legislation applies.
The purpose of this blog post is to briefly and conveniently explain when legal costs are recoverable and also the usual or typical percentage of recovery of legal costs.
When are legal costs recoverable from a respondent, defendant or insurer?
WorkCover Claims
If you are injured at work and you are pursuing a common law claim for damages, legal costs are only recoverable from WorkCover Queensland if you have a certificate injury which is for any injury which involves a whole person impairment of 20% or greater. Up to and including the compulsory settlement conference, minimal legal costs are able to be recovered from WorkCover and are typically not more than $10,000.00 to $15,000.00 in our experience. If the matter does not settle at the compulsory settlement conference and if you have a certificate injury then you are able to recover legal costs on the standard basis, which typically means 50% to 70% of your legal costs are recovered.
If your matter proceeds to trial (unlikely) and you succeed and achieve a judgment award which is higher or bigger than your written final offer made at the compulsory settlement conference, then you can seek an order that your legal costs be paid on the indemnity basis which is 90% to 100% of your legal costs paid from the date of the compulsory settlement conference until the end of the trial.
If your work-related injury results in an impairment of whole person which is less than 20% then there is usually no recovery of any legal costs unless your case proceeds to trial (unlikely) and you achieve a judgment outcome which is higher or bigger than your written final offer at the compulsory settlement conference.
The main takeaways regarding recovery of legal costs in WorkCover claims include:
- In some but not all WorkCover claims, a portion or percentage of an injured worker’s legal costs can be recovered from WorkCover but only with respect to certificate injury claims which is for injured workers with a 20% whole person impairment or greater;
- The vast majority of all WorkCover common law claims do not involve a certificate injury which;
- Most injured workers will not recover any contribution towards their legal costs if they pursue a common law claim;
- Lawyers for injured workers and the clients need to be very mindful and careful about the incurring legal costs in any ‘non-certificate’ injury claim as all of the legal costs will be deducted from the settlement sum or judgment award. While cases need to be prepared carefully and thoroughly, at vbr Lawyers we are always striving to provide the best possible outcomes while keeping the legal costs as low as possible;
- Fee structures and hourly rates between law firms can vary quite significantly so it is very important to carefully consider the terms and conditions of the client agreement or fee proposal. At vbr Lawyers, our hourly rates are highly competitive and have not increased in over 8 years. We also offer a 30% fee cap on professional costs and we do not charge any uplift fees due to acting on a speculative or ‘No Win – No Fee’ basis. Many of our competitors charge an uplift fee of up to 25%.
All other Personal Injury Claims
For all other personal injury claims such as road accident claims, medical negligence claims, occupier liability claims, slip and fall claims and product liability claims recovery of legal costs depends on the amount of any settlement or judgment award.
At the present time, to recover legal costs on the standard basis (50% to 70% of your legal costs paid by the respondent/defendant/insurer), the damages or compensation outcome needs to be $96,871 or more. If the settlement or judgment award is between $58,090 and $96,871 then the legal costs recovery is fixed by regulation in the sum of $4,860.00
If the settlement sum or judgment award is less than $58,090 or less then there is no recovery of any legal costs.
Main takeaways regarding recovery of legal costs in all other personal injury claims include:-
- At the present time, injured people need to recover about $97,000.00 to recover a reasonable contribution towards their legal costs which is called standard costs which is typically the respondent or defendant or insurer paying about 50% to 70% of your legal costs in our experience. We know that some law firms predict costs recovery at 30% to 50% but our clients enjoy much better recovery of their legal costs due to our fee structure;
- It is extremely important that the lawyer for any injured person carefully investigates any and all heads of damage or components of the claim to ensure that their client recovers the maximum amount of damages for their claim and by doing so also recovery of much of their legal costs as possible;
- If your case is likely to achieve a settlement of anything less than $96,871.00, it is very important that the fee structure of your personal injury law firm is reasonable and as modest as possible. At vbr Lawyers, we are always happy to discuss our fee structure with our new clients or potential clients which we believe is highly competitive and client friendly which includes our 30% fee cap on professional costs, modest hourly rates and we do not charge an uplift on our professional costs unlikely many of our competitors.
