Damages-based agreements—personal injury and clinical negligence
Damages-based agreements—personal injury and clinical negligence

The following Practice Compliance guidance note provides comprehensive and up to date legal information covering:

  • Damages-based agreements—personal injury and clinical negligence
  • Key terms
  • What is a DBA?
  • DBAs and the indemnity principle
  • Enforceability
  • Pre-conditions to having an enforceable DBA
  • Calculating the percentage payment
  • Do you need a risk assessment?
  • Impact of qualified one-way costs shifting
  • Recovering a costs insurance premium from the opponent
  • more

This Practice Note explains how the damages-based agreement (DBA) regime operates including:

  1. how DBAs work

  2. the impact of the indemnity principle on recovering costs from the client's opponent

  3. enforceability issues

  4. how to calculate the payment due under a DBA

  5. whether you need a risk assessment

  6. the impact of qualified one-way costs shifting

There are separate Practice Notes for employment and general litigation/advocacy services: Damages-based agreements—employment tribunal matters and Damages based agreements—general litigation or advocacy services.

The regime is the product of sections 45 to 48 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) which amend section 58 of the Courts and Legal Services Act 1990 (CLSA 1990) together with:

  1. Damages-Based Agreements Regulations 2013, SI 2013/609

  2. Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings (No 2) Regulations 2013, SI 2013/739

  3. relevant SRA requirements

Key terms

Base costs The amount you charge for the work you do (excluding disbursements and VAT), calculated as (1) number of hours spent on the client's matter x (2) hourly rate
CFA Conditional Fee Agreement
CLSA 1990 Courts and Legal Services Act 1990
CRU