Why there is little appetite for CFA in low value personal injury advocacy?

Having been both a litigator and advocate I can see even more so why there is little appetite for advocates to offer CFA for low value personal injury claims. Many ATE insurers will require counsel to act on a CFA at trial and do not cover Counsel’s fee.

It places litigators in a difficult position. A claim may have reasonable prospects of success but cannot secure representation at trial on a CFA. Very junior fee earners might wonder why it is so difficult to secure someone for trial on a CFA.

It may assist in being able to secure CFA represent to potentially understand why.

Pre-Jackson involvement by Counsel

Prior to the Jackson reforms (which affected any CFA entered into, Solicitor or Counsel) and after the abolishment legal aid, most Counsel were on CFAs.

Like the present, ATE would not cover the case if Counsel did not give the claim sufficient prospects of success. Even in low value personal injury cases, the usual starting point after a detail of liability was the involvement of Counsel. An advice was given and if Counsel gave reasonable prospects, this would justify the indemnity and the claim would proceed.

Counsel would most likely be asked to settle the Particulars of Claim. Occasionally, if the Defence included an issue not previously raised and required consideration, Counsel was instructed to advise again. Finally, after the exchange of evidence, Counsel may be instructed to prepare a final advice and/or have a conference with the Claimant before trial.

If the matter was allocated to the fast track, then there was a limit on trial advocacy fees, which is simliar to fast track trial cases not subject to the fixed recoverable cost regime:-

Value of the claim	Amount of fast track trial costs which the court may award
No more than £3,000	£485
More than £3,000 but not more than £10,000	£690
More than £10,000 but not more than £15,000	£1,035
For proceedings issued on or after 6th April 2009, more than £15,000	£1,650

Post-Jackson involvement of Counsel

I was not fee earning on 1st April 2013 but I was working with one of the senior solicitors of our firm and I recall the mania that we all faced trying to get as many clients signed up on a CFA. We were not the only ones either. I recall one Counsel had personally attended the firm and had considered 30-40 cases and signed CFAs on all the cases she could justify reasonable prospects.

This was due to the fact it would allow the recovery of success fees, but not just the Solicitor’s but Counsel’s success fee. This is something that Barristers who commenced with pupilage and subsequent tenancy within the the last few year would never have even considered.

There was the very brief period between 1st April 2013 until 31st July 2013 where new cases were ‘QOCS but full costs’, because the impending expansion of fixed costs to EL/PL was approaching. They became such a rarity that I recall my colleague having counsel call up prior to preparing an advice saying “how do you say this is QOCS but not fixed costs?”. It was understandable that such a short window was overshadowed by fixed cost, but there was (as we all know) why this Barrister was questioning this – he wanted to make sure his fee was recoverable.

Insufficient reward for Counsel to ‘place a bet’

So why is it the case that Counsel’s appetite for CFA has dropped? It cannot be amount allowed for trial, as you will see this has not really changed that much between standard costs fast track and fixed recoverable costs fast track:-

Claim amount	Standard cost Fast Track Fee	Fixed recoverable costs Fast Track Fee
up to £3,000	£485	£500
£3,000-£10,000	£690	£710
£10,000-£15,000	£1,035	£1,070
£15,000 to £25,000	£1,650	£1,705

It was clearly because there was more to gain to agreeing to a CFA if work was undertaken before hand that was recoverable and therefore likely to be paid.

Counsel was more pot committed (yes this is where the image is relevant if you have been wondering) to proceeding to trial on a CFA where they had done sufficient amount of work.

The removal of ring fenced counsel fees now means there is significantly less appetite for Solicitors to instruct Counsel early. What one has to consider as well is the financial remuneration for a fast track trial, especially one that is less than £3,000, the time preparing for trial would be wholly disproportionate. They would be better off accepting a brief to undertake a Stage 3 hearing where there is a ring fence fee of £250. Some Stage 3 hearings can be quite meaty, but there is no need to prepare for cross examination, no conference with the Claimant etc.

The involvement of Counsel at an early stage is important for multi-track cases and the expansion of the fixed costs regime at least allows for ring fenced fees. It should maintain the appetite for Counsel to accept on a CFA.

So if you are a junior fee earner and you wonder why Counsel isn’t accepting any of your trials on a CFA, just remember that you are asking them to put themselves all in for a pot that may be very little reward.

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.