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GUIDES – FUNDING LITIGATION
The cost of going to court stops more legitimate claims than anything else. Not because the law isn’t on the claimant’s side — but because people assume they can’t afford to find out.
If you’ve been harmed by a professional and you’ve started looking into your options, there’s a reasonable chance cost crossed your mind before liability did. That’s understandable. Litigation has a reputation for being expensive, slow, and unpredictable — and it can be all of those things if it’s not structured properly.
What most people don’t realise is that for professional negligence claims, there are funding arrangements that shift the financial risk away from you entirely. This guide explains how they work, what to watch out for, and what questions to ask before you sign anything.
Let’s be honest about what professional negligence litigation actually involves. Expert witnesses who can cost thousands to engage. Court filing fees. Barrister fees if the matter proceeds to hearing. These are genuine costs, and they add up.
But here’s the point most people miss: those costs don’t have to be yours to bear upfront.
The funding landscape for professional negligence claims in Australia has matured considerably. No-win, no-fee arrangements, after-the-event insurance, and in some cases third-party litigation funding mean that the financial risk of pursuing a claim can be managed — sometimes eliminated entirely for the claimant.
The barrier is real. It’s just not as immovable as it looks.
A no-win, no-fee arrangement — formally called a conditional costs agreement (CCA) — means your lawyer agrees to defer their fees until the claim resolves. If the claim is unsuccessful, you don’t pay their fees.
In plain terms: your lawyer bets on your case alongside you. They only get paid if you win.
These agreements are regulated under the Legal Profession Uniform Law in NSW and Victoria, and under equivalent legislation in other states. The law sets out what must be disclosed to you before you sign — including how fees are calculated, what uplift (if any) applies to the lawyer’s fee on success, and what your obligations are if the claim doesn’t proceed.
One thing to understand clearly: “no win, no fee” refers to your solicitor’s professional fees. It doesn’t automatically cover everything.
This is the question most guides skip — and the one that catches people off guard.
Disbursements are the out-of-pocket costs of running a claim. They are separate from your solicitor’s fees, and they can be significant in professional negligence matters — particularly where expert evidence is required to establish what the professional should have done differently.
COMMON DISBURSEMENTS INCLUDE:
Whether disbursements are covered under a no-win, no-fee arrangement depends on how the agreement is structured. Some firms fund disbursements on your behalf and recover them on success. Others require the client to cover them as they arise.
Before you sign any costs agreement, ask specifically: What am I personally exposed to if this claim is unsuccessful, and what happens to disbursements? A reputable firm will answer that question clearly.
Even with a solid no-win, no-fee arrangement, there’s one cost exposure that catches claimants by surprise: the other side’s legal costs.
In Australian courts, costs generally follow the event. That means if you lose, you may be ordered to pay the defendant’s legal costs — which can be substantial when the defendant is a professional with an insurer and experienced legal representation behind them.
After-the-event (ATE) insurance is designed to cover exactly that risk. It’s arranged after a claim has been assessed and accepted — not before. The insurer reviews the claim, its prospects, and the potential cost exposure, then offers a policy covering the defendant’s costs if the claim is unsuccessful.
The premium is typically deferred and only becomes payable on a successful outcome. If the claim fails, the premium is usually waived entirely.
ATE insurance isn’t appropriate for every claim. Smaller disputes may not justify the premium structure. But for substantial professional negligence claims — particularly those involving significant financial loss or medical harm — it can be the piece that makes pursuing a claim genuinely risk-free for the claimant. Your lawyer should raise this option if it’s relevant. If they don’t, ask.
For higher-value claims, a third option exists: third-party litigation funders.
A litigation funder is a commercial entity — not a law firm — that agrees to fund the cost of your claim in exchange for a percentage of the settlement or judgment if you win. The funder carries the financial risk. If the claim fails, they lose their investment and you owe them nothing.
This model is well-established in Australia for large commercial disputes, class actions, and complex professional negligence matters where the claim value justifies the arrangement. The Australian Securities and Investments Commission (ASIC) oversees the sector, and the regulatory framework has evolved significantly in recent years.
For individual claimants with claims in the lower-to-mid range, third-party funding is less common — the economics generally don’t work at that level. But for significant financial loss, structured third-party funding is a legitimate and well-used mechanism. It’s worth knowing it exists, even if it turns out not to be the right fit for your situation.
Self-funding is an option, and for some claimants — particularly businesses with resources and strong evidence — it can make sense.
Under a private retainer, you pay your lawyer at their standard hourly rate as the matter progresses. You retain full control and aren’t subject to any success fee uplift. But you carry all the financial risk.
If the claim is unsuccessful, you bear your own costs and potentially the defendant’s costs under a court costs order. For most individual claimants, that exposure rules out self-funding as a realistic path. There are situations where it makes sense — short disputes with clear evidence, or commercial claimants who have already budgeted for the risk. But it should be a deliberate choice, not a default.
We work on a no-win, no-fee basis for professional negligence claims. Before any engagement, we explain exactly how the arrangement works — what our fees are, how disbursements are handled, and what your exposure looks like in the unlikely event the claim doesn’t succeed.
We carry the risk alongside you. That’s not a marketing line — it’s the reality of how we operate. We assess claims carefully before accepting them because our own financial exposure depends on the outcome. If we take your claim on, it’s because we believe it has genuine merit.
We handle claims across every state and territory. Distance is not an issue.
A good costs agreement should answer these questions clearly. If it doesn’t, ask before you sign:
Any competent, reputable firm will answer all of these without hesitation. Vague or evasive answers to cost questions are a warning sign worth taking seriously.
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A free case evaluation costs you nothing. We’ll assess your situation, explain whether there’s a claim worth pursuing, and walk you through how the funding would work — with no obligation to proceed.
We respond to all enquiries within 1 business day.
Yes. Most specialist professional negligence firms, including Fair Go Australia, operate on a conditional costs agreement (CCA) basis. This means your lawyer’s fees are deferred until the claim resolves and only become payable on a successful outcome. The arrangement is regulated under the Legal Profession Uniform Law in NSW and Victoria, and under equivalent legislation in other states.
You won’t owe your lawyer’s professional fees. However, depending on how your costs agreement is structured, you may still be exposed to disbursements — such as expert report fees and court filing costs — and potentially the other side’s legal costs under a court costs order. After-the-event insurance can cover that exposure. Ask your lawyer to explain your full risk position before proceeding.
Expert reports are a disbursement — separate from your solicitor’s fees. Whether those costs are funded on your behalf or charged as they arise depends on the structure of your costs agreement. In a well-structured no-win, no-fee arrangement, disbursements are often deferred and recovered on success. Clarify this specifically before signing anything.
After-the-event insurance is a policy taken out after a claim has been accepted, designed to cover the defendant’s legal costs if the claim is unsuccessful. In Australian courts, costs orders are commonly made against unsuccessful claimants — ATE insurance eliminates that risk. Premiums are typically deferred and only payable on a successful outcome, with many policies waiving the premium entirely if the claim fails.
For higher-value claims, yes. Litigation funders are commercial entities that fund the cost of a claim in exchange for a percentage of the settlement or judgment. They carry the financial risk — if the claim fails, you owe them nothing. Third-party funding is more common in large commercial disputes and class actions, but it is available for significant professional negligence matters. Your lawyer can advise whether your claim is a candidate.
The firm accepting your matter on a no-win, no-fee basis is itself a signal. Because the firm carries the financial risk, they will only take on claims they genuinely believe have merit. The free case evaluation is the starting point — it gives you an honest, no-obligation assessment of whether your situation is likely to support a claim, and what funding options are available.
Our goal is to help people in the best way possible. this is a basic principle in every case and cause for success. contact us today for a free consultation.
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