Contingency Fee vs Conditional Fee Agreement
Both mean your lawyer is paid only if you win, but they work differently. A US contingency fee is a percentage of what you recover. A Conditional Fee Agreement in England and Wales pays the solicitor their normal base costs plus a success fee calculated as an uplift on those costs — with a separate cap on how much may come out of your damages. The percentages are not measuring the same thing, so they cannot be compared directly.
The Core Difference
Direct Answer: A contingency fee is a share of your damages. A success fee under a CFA is an uplift on your solicitor’s costs. That is why a US fee of “one third” and an England and Wales cap of “25%” are not comparable figures — the first is a percentage of the recovery, the second is a limit on what may be deducted from particular categories of damages.
| United States | England & Wales | |
|---|---|---|
| Name | Contingency fee | Conditional Fee Agreement (CFA) |
| How the lawyer is paid | A percentage of the recovery | Base costs plus a success fee uplift on those costs |
| Governing rules | State conduct rules based on ABA Model Rule 1.5; state statutes | Courts and Legal Services Act 1990 s.58; Conditional Fee Agreements Order 2013 |
| Cap on the lawyer’s share | No general cap; some states cap fees in specific case types such as medical malpractice | Success fee ≤ 100% of base costs; in PI, ≤ 25% of specified damages may be taken from compensation |
| Case expenses | “Costs” — separate from the fee; treatment on a loss depends on the agreement | “Disbursements” — separate from costs; often covered by ATE insurance |
| If you lose | No attorney fee; defendant’s taxable costs may be awarded against you (FRCP 54(d)); no QOCS equivalent | No solicitor’s fee; QOCS usually prevents enforcement of the defendant’s costs in PI claims, subject to exceptions |
| Insurance | Not typically part of the arrangement | ATE insurance common; premiums generally not recoverable from the opponent post-LASPO |
| Prohibited case types | Criminal defence and most domestic relations matters (Model Rule 1.5(d)) | Criminal and most family proceedings |
Where the Risk Really Differs
The fee comparison gets most of the attention, but the more consequential difference is what happens when you lose. England and Wales operates a loser-pays costs rule, which would be ruinous for injured claimants — so QOCS exists to switch it off in most personal injury claims. The United States follows the American Rule, under which each side normally bears its own attorney fees, so no equivalent protection was ever needed.
The practical result is counter-intuitive. Because QOCS is a rule with exceptions, a UK claimant found to have been fundamentally dishonest can lose protection entirely and face the full bill. A US plaintiff is rarely exposed to the other side’s attorney fees, but is routinely exposed to taxable costs and, where a statute shifts fees, a good deal more. Read the England and Wales position and the US position side by side.
The Closer UK Equivalents
If you are looking for the arrangement that most resembles a US contingency fee, it is not the CFA. Two others come closer:
- Damages-Based Agreements (England & Wales) — the solicitor takes a percentage of the damages recovered, capped by claim type under the 2013 Regulations. Structurally much closer to the US model, but used far less often in practice.
- Scottish success fee agreements — a capped percentage of the financial benefit obtained: 20% of the first £100,000, 10% between £100,000 and £500,000, and 2.5% above that in personal injury claims.
Terminology That Trips People Up
| United States | England & Wales | Note |
|---|---|---|
| Attorney | Solicitor / barrister | Two separate professions in E&W |
| Costs / expenses | Disbursements | Money paid out on the case |
| Fees | Costs | “Costs” means opposite things — the commonest confusion |
| Statute of limitations | Limitation period | Deadline to bring a claim |
| Plaintiff | Claimant (pursuer in Scotland) | The person bringing the claim |
The “costs” line is the one that causes real problems. In the US it means case expenses; in England and Wales it means the lawyer’s charges. Reading a UK guide with US assumptions, or vice versa, will produce exactly the wrong conclusion.
Frequently Asked Questions
Frequently Asked Questions
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Sources for this page
Every rule stated above is based on the primary sources below. Each link goes to the legislation, court rule or regulator itself so you can check it. Last verified 3 August 2026.
- ABA Model Rule 1.5 (Fees)
Model, not law. Each state adopts its own version. Rule 1.5(d) bars contingency fees in most domestic relations matters and in criminal defence.
- Courts and Legal Services Act 1990, s.58 (conditional fee agreements)
The provision that makes CFAs lawful and enforceable. CFAs derive from this section, not from LASPO.
- Conditional Fee Agreements Order 2013, arts. 4–5 · in force from 1 April 2013
Art. 4 caps the success fee at 100% of base costs. Art. 5 caps what may be taken from damages in personal injury at 25% of PSLA plus past pecuniary loss, net of CRU, at first instance.
- Civil Procedure Rules, Part 44 (incl. rr.44.13–44.17, QOCS)
Qualified one-way costs shifting and its exceptions. Rule 44.14 was amended with effect from 6 April 2023.
- Federal Rule of Civil Procedure 54(d) (costs to the prevailing party)
A losing plaintiff may be ordered to pay the defendant's taxable costs. There is no US equivalent of QOCS.
- Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (Success Fee Agreements) Regulations 2020 (SSI 2020/110)
Regulation 2 caps the success fee in personal injury claims at 20% of the first £100,000 of financial benefit, 10% of the amount between £100,000 and £500,000, and 2.5% above £500,000. Other claims are capped at 50% of the financial benefit.
Who wrote and checked this page
- Written and published by
- Edward & Amaury Solicitors (Edward & Amaury Ltd, company no. 12195443), regulated by the Solicitors Regulation Authority under no. 800525.
- Legal review
- Checked for United States & United Kingdom by Edward & Amaury Solicitors — Solicitors regulated by the SRA (no. 800525) (verify on the regulator’s register).Review is recorded against the firm. The individual reviewer is not named on this page.
- Review dates
- Last reviewed 3 August 2026. Next review due 3 February 2027.
Fee rules change. California’s medical malpractice fee limits changed on 1 January 2023, and the QOCS rules in England and Wales changed on 6 April 2023. If you spot something out of date, tell us — we publish corrections.