Is no win no fee really no good?
The announcement this week that the Ministry of Justice was at last opening an investigation into the future of no win no fee claim felt like a breath of fresh air to some. The controversial arrangement has attracted tremendous criticism over the last ten years and the announcement of a reform has been long overdue. Whether they were designed to provide access to justice or to make the legal process more transparent, are objectives that have since been clouded by the murky litigation of celebrities shutting out the freedom of the press and extravagant ‘success fees’ that have diluted compensation claims.
Professor Richard Moorhead, Professor Paul Fenn and Professor Neil Rickman have a great task on their hands wading through the countless casualties of litigation that have spawned the never-ending criticism of conditional fee arrangements ever since their inception ten years ago. One of the first accusations they will have to investigate for its veracity is that they have given birth to the compensation culture that so many critics point to that is prevalent in our society. The arrangements marked the first time more people have been able to pursue claims without having to rely on funding the clams out of their own wallet and has led to the scenario that over the last ten years there have been more claims than in the previous nine years.
Yet the criticisms do not address the underlying good from the arrangements. Many people, who were unable to get Legal Aid, were not pursuing good claims because they could not afford to fund their cases themselves. The fact remains then that the arrangements have provided greater access to justice for such individuals who if they can a case with merit can pursue it in the courts.
Of course there has been the accusation that no win no fee solicitors are being unscrupulous when clients are signing a retainer and perhaps some clients have not fully understood what they are signing but are convinced to do so in any event, and there may have been occasions where individuals have been encouraged to pursue claims against their own interests. Cynics point to the potential size of the ‘success fee’ convincing law firms to follow this route.
It is submitted that the overall good that has come out of the arrangements outweighs the accusations that the Professors have to address. For instance, client services have developed tremendously in light of the arrangements with most lawyers obtaining loans for their clients to cover costs and the cost of insurance to protect the client from the risk of losing. This means then hat the client can have access to justice without worrying that if they lose their case they will be left in a dire financial situation having to pay their opponents costs.
Finally the no win no fee arrangement simplified a system that was not claimant friendly and was seen as too complex. If the Professors decide anything in their review, it will most likely be that the system needs to simplified even further as opposed to a radical overhaul of the entire system.
Updated on 28/06/2008