Do I need a lawyer?

Can I make a claim myself, without a lawyer?

In most cases, you can make a claim and deal directly with the Insurance Commission to receive your entitlements.

There are some circumstances where a lawyer must be engaged, such as your claim involves a child or person with a disability and court approval of a settlement is required.

You can choose to engage a lawyer at any stage of your claim.

Not eligible to make a claim?

If your injuries are not covered under the motor vehicle injury insurance policy, you may wish to engage a lawyer. They can offer advice on whether there are other avenues available to you to seek care and/or compensation for your injuries.  For example, you may be able to make a claim under workers’ compensation, a liability claim against a third party, or a claim under a total and permanent disability insurance or personal accident insurance policy via your superannuation fund or employer.

Tips for engaging a lawyer

Initial consultation: when arranging a first meeting with a lawyer, ask them whether they will charge you for that initial consultation and what the fee is. This consultation (meeting) may be in person or by phone.

Engagement: if you choose to engage a lawyer after the initial consultation, the lawyer will send you an engagement letter. This letter will outline the services they will provide you and how they will charge you.  The lawyer is required to tell you about your rights including:

  • your right to negotiate a costs agreement;
  • your right to receive a bill;
  • your right to request an itemised bill; and
  • your right to receive an estimate of the total legal cost to you. If this is not possible, your right to an estimated range of total costs, with an explanation of the factors that may influence the calculation of your costs. NOTE: if the estimated costs are not likely to exceed $3000, the list of rights above may not be applicable.

Legal costs: Various lawyers may have different ways to charge for their services.

  • Fees:
    • charge an hourly rate based on the time they spend working on your matter;
    • charge a fixed fee for certain services; and
    • cap their fees at an agreed amount.
  • Disbursements:
    • In addition to their fees, lawyers charge for disbursements. This includes things like fees paid to a doctor to get a report written, fees paid to the court to have your case judged, fees paid to a barrister if one is needed and administrative fees such as photocopying.
  • Party/party and solicitor/client costs:
    • Party to party costs are an amount the court orders  is paid by a party to the other party, as a part of a court settlement. If you enter into a settlement with the Insurance Commission, in most cases we will pay reasonable party/party costs.
    • Solicitor to client costs are the  charges you agree to pay your lawyer (outlined in "Fees" above).
    • You should be aware that while the Insurance Commission may agree to pay some or all of your party to party costs, some lawyers will ask you to cover any gap between party/party costs and solicitor/client costs.
  • Payment of your settlement money:
    • Any settlement money from the Insurance Commission must be paid into your solicitor’s trust account and held on your behalf.
    • The lawyer will send you a bill for all costs.
    • Seven days after sending you a bill, if you have given proper authorisation ( in the costs agreement you made when engaging the lawyer or otherwise), the lawyer can deduct the amount in that bill from the settlement paid,  to cover their costs.  The bill may include an amount representing any gap between party/party costs and solicitor/client costs.
    • If your claim is for damages in relation to death or personal injury directly caused by, or by the driving of, a motor vehicle, then a lawyer is not entitled to charge you an amount which exceeds the relevant scale set by the Legal Costs Committee.
  • What if I disagree with the costs I've been charged?
    • If the bill you have been sent is a summary only, you can ask the lawyer to provide you with an itemised bill. It is recommended you do this within 30 days of receiving a summary bill. A lawyer can  take action to collect unpaid legal fees, once 30 days have passed.
    • Your lawyer when sending you a bill must advise you of your rights including:
      • your right to have the costs assessed;
      • your right to have the costs agreement set aside in certain circumstances;
      • your right to lodge a complaint in relation to the lawyer; and
      • any time limits related to taking any of these steps.

What does  "No win, no fee" mean?

In a "no win, no fee" agreement, your lawyer agrees that you will only need to pay their legal costs if you ‘win’ your case.

WHAT IS A WIN?

  • The definition of a ‘win’  must be clearly set out in your 'No-win, no-fee' arrangements/agreement.
  • A win can mean more than just winning a court case at trial.  A win can also mean:
    • an out-of-court or pre-litigation settlement where you receive compensation from the Insurance Commission, even if the compensation is substantially less than what you expected;
    • a court decision awarding you compensation, even if it was substantially less than you expected to receive; and
    • rejecting a settlement offer from the Insurance Commission that your lawyer recommends you accept, regardless of whether: − you believe the settlement amount offered is reasonable; or − your lawyer advised you at some stage during the matter that you may receive a higher amount.
  • In some circumstances, your lawyer may be entitled to charge their legal fees if you drop the claim or change lawyers before the matter is concluded.
  • You should discuss this with your lawyer and carefully review the definition of a ‘win’ in your costs agreement.

WHAT IF MY CASE IS UNSUCCESSFUL?

  • There are costs and fees you may have to pay regardless of whether or not you ‘win’ your case. These costs may include:
    • disbursements – include items such as medical report fees, barrister’s fees, court fees and photocopying.
    • the other side’s legal costs – you may in some circumstances be required to pay the Insurance Commission’s legal costs if your claim is unsuccessful.
  • The fees charged in a no-win, no-fee agreement can be up to 25% higher than the lawyer’s regular rates.  This is because the lawyer is taking a risk that they may not be paid for their services if the claim is unsuccessful.
  • Lawyers are prohibited from charging contingency fees, which is an arrangement whereby the lawyer charges fees based on a percentage of any settlement or damages awarded to you.
  • We recommend you clarify all of the details above with your lawyer before making any arrangements.

For more information about  your rights, legal costs and more, visit the Law Society of Western Australia.

For a downloadable version of the information above, click here.