Damages-Based Agreement (DBA)
This Damages-Based Agreement (‘ DBA ’) is a binding contract between you and us, acting as your legal representative. Before you sign this DBA, please read everything carefully.
THIS AGREEMENT is dated
PARTIES
Various individuals as recorded in the Second Schedule to this Damages Based Agreement, as updated from time to time (each individual referred to as “the Client” and collectively hereafter referred to as “the Clients”) in the pursuit of a claim for remedies arising from a claim for holiday entitlement and workplace pension contributions; and
C4J Ltd (“ Legal representative ”).
Each a “ Party ” and together the “Parties”.
BACKGROUND
This agreement is a Damages-Based Agreement within the meaning of section 58AA of the Courts and Legal Services Act 1990 and the Damages-Based Agreements Regulations 2013 (SI 2013/609) (the “Regulations”).
The Schedules accompanying this DBA form part of this contract.
AGREED TERMS
1.Definitions
1.1 In this DBA unless the context otherwise requires, the following words and expressions have the following meanings: -
“ATE insurance”
“After the event” insurance that has been, or may subsequently be, taken out to protect against your liability for your Opponent’s costs should you Lose your Claim.
“Claim”
The Claim against Agency/(ies) and/or any other party who we decide should be Defendant(s) in relation to the claim for unpaid holiday entitlement and unpaid workplace pension contributions, or other claims, as agreed from time to time.
“Time Costs”
The total of Solicitor’s time reasonably spent, in respect of the Claim or Proceedings, multiplied by the reasonable hourly rate of remuneration of Solicitor as specified herein at clause 5.5.
“Compensation”
Money that you recover from the Defendant(s) or which is paid on behalf of the Defendant(s) or a third party in part or full satisfaction of your Claim.
“Expenses”
Means expenses or disbursements incurred by Solicitor, excluding Counsel’s Fees, both already paid or incurred and due in the future in relation to the Claim, and including, but not limited to:
Experts’ fees Court fees External photocopying/printing charges Travel expenses And/or any other expenses which the Solicitor should consider necessary for the progression of your Claim.
Your Liability to pay our Expenses is net of any amount of expenses which has been paid or is payable by another party to the proceedings by agreement or order
“Opponent”
The Defendant(s) and any other party against whom the Client proceeds in this Claim.
“DBA Payment”
The percentage of the recovered Damages / Compensation you hereby agree to pay C4J Ltd as provided for below.
“Proceedings”
Any legal proceedings, arbitration, mediation or other steps taken.
“Settlement”
An agreement between you and the Defendant(s), in settlement of the Claim. This shall include any waiver or compromise of the claim against the Defendant(s). “Settle” and “Settled” shall be construed accordingly
“Success” “Successful” “Win”
Where the Client’s Claim is decided in the Client’s favour by way of a Court order, or an agreement with the Defendant(s) or a third party, and irrespective of the forum in which that judgement is given resulting in any Damages/Compensation being received by the Client, irrespective of whether a costs order is made in favour of the Client.
“we””us” “our” “ours”
C4J Ltd of Saracen House, Crusader Road, Lincoln LN6 7AS
“you” “your” “yours”
The Client or Clients
1.2 For the avoidance of doubt, the DBA Payment, our time Costs, and Expenses may be subject to Value Added Tax (“VAT”). We will charge you VAT where we are required by law to do so. All our fees are quoted exclusive of VAT unless otherwise stated.
2. Our Responsibilities
2.1 We must always act in your best interests, subject to our duty to the court and/or our other professional duties. Our responsibilities include advising you of any legal issues, circumstances and reasonably foreseeable risks (including, in particular, the risk of rejecting any settlement offer) relevant to the Claim. We will keep you apprised of the progress of the Claim.
3. Your Responsibilities
3.1 Your responsibilities include providing us with clear, timely and accurate instructions and with all information and documents necessary for us to conduct the Claim effectively.
3.2 We ask that you provide us with all the documentation you have, which could in our view help us with your Claim. This may include but is not limited to letters, documents and e-mails related to your Claim, third party reports and records, governmental filings, and expenses. If necessary, we will ask you to give us written authorisation to obtain this information
4. What is covered by this DBA
4.1 This DBA relates to your Claim to recover Damages/Compensation for damage and/or loss you suffered as a result of you being deducted unlawful deductions by your Employer such as an Umbrella Company, or such other claims which may arise. In addition we will seek to recover compensation for any unpaid holi day entitlement and unpaid workplace pension contributions you was due, but not paid.
4.2 This DBA does not cover any appeal by you or any other party in relation to any final judgement or decision.
5. Legal Fees
5.1 You have asked us to charge you based on a percentage of the Damages/Compensation recovered by you in Settlement or pursuant to a court judgment/order. This is the only payment for legal costs you will have to make to us. It only becomes payable if you are Successful.
5.2 If your Claim is not Successful you will not have to pay us anything
5.3 If you secure an order entitling you to payment of costs from the Opponent and/or where the Opponent agrees to making such a payment, you can seek recovery of some or all of the DBA Payment. However the amount the Opponent has to pay towards the DBA Payment will be based on notional time Costs for our work(even though this is not the basis of your liability to us under the DBA), plus a reasonable amount for Counsel’s fees.
5.4 Our notional time Costs will be calculated for each hour or sixth of an hour (one unit) engaged on the Claim. Routine letters, emails, telephone calls and text messages will be charged as a minimum of one unit (i.e. 10 minutes). If they take longer than one sixth of an hour to deal with they will be billed in units of 10 minutes rounded upwards to the nearest 10-minute unit. For costs sharing provisions please read Clause 12 below.
5.5 Our current (notional) hourly rates are set out below:
Fee Earner
Hourly Rate
Solicitor/Accountants
£400
Legal Executive
£250
Trainee solicitors & Paralegals
£150
5.6 These (notional) hourly rates will be adjusted by the Solicitors annually with effect from 1st January each year and the revised rates will apply for any work undertaken thereafter.
5.7 The cost of any work by us, or by any solicitor agent on our behalf on our instruction, forms part of our time Costs.
6. What happens if you Win the Claim
6.1 If you Win the Claim, you will pay us:
a) the DBA Payment; and b) Expenses incurred by us on your behalf, in addition to the DBA Payment
6.2 If you Win overall normally the Opponent will be required to pay some or all of our Time Costs (as set out above), and some or all of your Expenses. We will deduct any time Costs and Expenses paid or payable by the Opponent from the award before calculating the DBA payment. Similarly, we will deduct any expenses paid or payable by the Opponent from your liability to us for Expenses.
6.3 If you Win overall but on the way you are not Successful at an interim application hearing, you may be required to pay the Opponent's costs relating to that hearing. We will arrange ATE insurance to protect you against the risk of incurring these costs where it is available. We will notify you if we are unable to secure ATE insurance.
6.4 If we and the Opponent cannot agree the amount of our time Costs, and Expenses the Opponent will pay to you, the Court will decide how much you can recover from the Opponent. The amount of our time Costs agreed or allowed by the Court will be deducted from your liability for the DBA Payment so that you only pay the DBA Payment net of any time Costs that have been paid or are payable by your Opponent.
6.5 Where the Opponent makes an offer to settle the Claim for a lump sum or benefit that does not distinguish between Damages/Compensation and our time Costs and Expenses, you agree that you will not accept such an offer without our written consent. Where we give our consent, we will agree with you an appropriate apportionment of the lump sum so as to identify an appropriate and fair apportionment between time Costs and Expenses, and Damages/Compensation.
6.6 If the sum actually received by you from the Opponent is not the amount the Opponent has agreed or has been ordered to pay, then you will use all reasonable endeavours to assist us in recovering the money due and owing. This will include, but is not limited to, the right to take action in the Client’s name to enforce an order or agreement.
7. The DBA Payment
7.1 The DBA Payment represents our fee for the work we undertake in acting for you and sharing the financial risk in pursuing your Claim on your behalf. The DBA Payment is set out below:
(plus VAT at the prevailing rate) of the total monies reclaimed from your Agencies and/or Client actually received by us on your behalf.
7.2 You agree that if your Claim is Successful, the reasons for setting the DBA Payment at the amount stated may be disclosed to the Court and any other person required by the Court.
7.3 The DBA Payment will apply to any interim damages recovered as your Claim progresses as well as any final Damages/Compensation recovered.
8. Counsel’s Fees
8.1 Our DBA Payment includes Counsel’s fees.
9. What happens if you Lose the Claim
9.1 If you Lose, you do not pay us anything. It is likely in such event that you will be required to pay the Opponent’s costs of the Claim, although, as set out above we are arranging ATE insurance to protect you against the risk of such payments.
10. Group litigation - Individual and Common Costs
10.1 As you are bringing a claim as part of a group of claimants, when seeking to recover costs from the Opponent, your notional liability for our time Costs and Counsel’s Fees will reflect work done and Counsel’s Fees incurred on your individual claim,
10.2 In group litigation, it is not usually possible for solicitors to take instructions from each individual client about how best to conduct their claims. In such a case, you therefore authorise us to take all the steps we consider appropriate to best conduct your claim, including (but not limited to):
a) deciding what types of legal claims to pursue on your behalf and how best to put these forward; b) making strategic decisions on how best to progress the claim, including decisions regarding preliminary legal issues, lead claims and appeals; c) issuing legal proceedings where appropriate d) selecting and instructing appropriate barristers in your claim, e) instructing other solicitor’s firms or groups of firms to carry out work on your behalf, if we consider appropriate, f) selecting and instructing appropriate experts and filing and serving expert evidence, g) entering into settlement negotiations or alternative dispute resolution with your opponent, and where appropriate, settling the claims, h) taking all steps to recover our costs from your opponent, including commencing detailed assessment proceedings and entering settlement negotiations or alternative dispute resolution; and i) give consent on your behalf in the event that any member of the group is required to discontinue their claim.
11. What happens if you or we (“Either Party”) decide to end this DBA
11.1 If either Party decides to end this DBA they must do so in writing to the other party stating their clear reasons for doing so.
11.2 We are free to withdraw our services and end this DBA at any time. For example we may withdraw our services where:
a) You have failed to act reasonably, b) If you reject our opinion/advice about making or accepting a Settlement, including a Part 36 Offer, with your Opponent, c) If you become insolvent or bankrupt or equivalent in accordance with the relevant definitions of those events under English law.
11.3 You may end this agreement in writing at any time but if you decide to end this DBA and discontinue this claim, and/or continue with another firm, or on your own behalf, you will continue to be bound by your obligations for payment to us under this DBA. If you do end this agreement:
a) You will be liable to pay immediately all our Time Costs and Expenses incurred by us pending determination of the amount of the time Costs and Expenses paid or payable by your Opponent. b) You must notify us immediately in writing of any monies received and to give irrevocable instructions to your new solicitors to hold the DBA Payment and any sum due to us under this DBA including Expenses on trust for us in a designated client account and to give us confirmation of the same.
12. Funding and ATE
12.1 We are looking to arrange ATE insurance for you in connection with the Claim. Our DBA Payment will include the costs of the ATE insurance premium.
12.2 In addition, we may borrow money from a third party bank or a specialist provider of litigation finance (Litigation Funder) in connection with the Claim (or we may incur finance in connection our business generally, some of which may be used to cover our costs in connection with the Claim).
12.3 In connection with the ATE insurance and/or that financing we expect to share a portion of our DBA Payment with those third parties. You will not have to pay anything directly to the ATE insurer or third-party financer.
13. Severability
13.1 If any decision of any court or administrative body of competent jurisdiction or any new regulations or laws relating to damages-based agreements (which come into force post signing of this DBA) result in any term or provision in this DBA, in whole or in part, to any extent, being/becoming illegal, invalid or unenforceable, that term or provision or part shall, to that extent, be deemed not to form part of this DBA and the enforceability of the remainder of this DBA shall not be affected which shall remain in full force and effect.
13.2 If any term or provision of this DBA is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
13.3 The parties agree, in the circumstances referred to in clause 13.1, to attempt to substitute any invalid or unenforceable provision with a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
14. Mediation/Arbitration
14.1 If any dispute or question whatsoever arises between the Client and Solicitor with respect to the construction or effect of the rights duties or obligations of the Parties under this DBA, or as to any other matters in any way arising out of or connected with this DBA, the matter in dispute shall be referred to the following procedure before any arbitral proceedings are issued by either the Client or Solicitor:-
a) The Client may follow the Complaints Handling Policy referred to in the Client Care Letter. b) As soon as appropriate, taking into account the urgency required, but in any event within 14 days of any issue or dispute arising there should be a without prejudice meeting between the Client and Solicitor to discuss whether a solution is possible. If the issue or dispute is not resolved, then: c) Either Party shall issue LCIA arbitration proceedings within 21 days of the without prejudice meeting (see clause 14.2 below).
14.2 Any arbitrator’s fees and expenses (and any VAT payable on them) shall be borne as the arbitrator awards. If either Party pays the whole of those fees and expenses he may recover the proportion payable by the other under the award from the other.
15. Governing Law and Jurisdiction
15.1 This DBA and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the law of England and Wales.
15.2 Any dispute or claim that arises out of or in connection with this DBA or its subject matter, if the issue or dispute is not settled by way of a without prejudice meeting as above, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules, which Rules are deemed incorporated into this DBA. The number of arbitrators shall be one and the seat of the arbitration shall be London.
This DBA contains the whole agreement between us about our relationship with each other and our charges and Expenses. It will not be changed unless you and we both agree, put in writing and sign any changes.
If you are satisfied with this DBA, please sign and date both copies and return one of them to us. Keep a copy for your records.
The parties acknowledge and agree that this DBA is not a Contentious Business Agreement within the terms of the Solicitors Act 1974.
Signed on behalf of C4J Ltd:
(Director)
Date:
Client Name :
Client Reference Number:
Date:
