So, conditional or contingent. Which can you choose?
In England and Wales you are more or less stuck with the conditional fee agreement.
Contingency fee agreements are still banned except, by a quirk of the law, in relation to claims before an employment tribunal. In relation to those claims both types are legal.
Which should you choose?
If you have the choice, there is no hard and fast answer to the question which of them you should prefer. However, here is some rough guidance.
If you think that your case is one that will be settled early on, by an agreement with the other side without the need for any court or tribunal proceedings, then you might well be better off with a conditional fee agreement rather than contingent. This is because early settlements tend to come with smaller legal bills and therefore the fact that the success fee is calculated on the size of the legal bill will mean the success fee is smaller.
However, the flip side of this is that early settlements tends to be smaller than judgments received in Court. This is because by settling early you are receiving certainty that you will get the smaller amount, rather than the uncertainty of going to court and getting a higher amount or getting nothing.
If on the other hand you think that your case is one that will be fought all the way to the bitter end in court, then you might well be better off with a contingency fee agreement, if it is available. This is because ones that go all the way to a court hearing tend to be the ones that cost an absolute fortune in legal fees, and therefore under a conditional fee agreement the success fee, being based on the normal fee, would also be enormous, whereas under a contingency fee agreement your success fee would be capped at a given percentage of your compensation.
This is a broad look at it, but it really all depends on the precise figures in an individual case. What are the fees likely to be for the case and what might the anticipated recovery be? This cost benefit analysis, as you might call it, is a very important aspect of making this choice.
Which would the lawyer choose?
Bear in mind that not all lawyers offer all varieties of agreement that are available, and whatever they do offer you is not necessarily because it is the best deal. The thing you must appreciate about no win no fee arrangements of whatever character is that by entering into such an agreement you are ensuring that your lawyer has an interest in the result of the case that goes beyond the normal interest in simply doing a good job for a client. They have a financial interest and therefore to an extent you will give up some of the client's normal right to control how the case is pursued.
But you also cannot necessarily assume that when the lawyer advises you as to how that lawyer would be prepared to deal with the case that that necessarily is in your best interest as opposed to theirs. A lawyer is a commercial entity who will make his own judgement on this and lawyers are like all businesses: if you are not happy with what is suggested you can always go elsewhere.