Hopes that a new cost regime will improve access to justice
Everyone will be aware, no doubt, of the problems that have arisen since the introduction of conditional fee or “no win, no fee” agreements.
The government withdrew legal aid funding for personal injury cases and Conditional Fee Agreements (CFAs) were introduced in 1995 as a replacement. The intention was that a Claimant would still be free to pursue their claim, irrespective of their financial circumstances, as long as their solicitor agreed they had a good case.
The government further upped the stakes when they introduced the CFA Regulations 2000 which allowed Claimants to recover success fees from Defendants. This resulted in a rash of satellite litigation which has led to delay, uncertainty and spiralling costs.
Signs that the situation would improve came from a government consultation paper entitled “Making simple CFAs a reality (29 June 2004)”. In that paper, David Lammy, then Minister for Civil Justice, stated that despite the “unhelpful turbulence” of the last few years, CFAs still had a central role to play in ensuring access to justice.
It is to be hoped that matters will be improved when the whole CFA regime changes on 1 November 2005. The Conditional Fee Agreement (Revocation) Regulations 2005 remove the earlier provisions and effectively nothing is put in their place. Section 27 of the Access to Justice Act 1999 is now the only piece of legislation dealing with conditional fees.
Primary responsibility for standards is now to rest with the Law Society’s Professional Rules of Conduct. The intention is that “no win, no fee” agreements will be straightforward and accessible to the ordinary Claimant. The Law Society have drafted a new model agreement but the document will now only be 2 pages long and in addition the Claimant should be given a document containing an explanation of the terms of the CFA in simple and straightforward language.
It is to be hoped that this new regime will improve public understanding and confidence. It is also hoped that it will abolish the technical challenges and satellite litigation. This will lead to cost savings and should improve access to justice for all, says Kelvin Farmaner, Associate Solicitor with Foot Anstey, Solicitors.
27 October 2005
