Why No Win No Fee Arrangements Are A Good Idea
The term 'no win no fee' has become almost infamous: the term has been in the public consciousness for around fifteen years now, but its reputation has really only been galvanised more recently.
There is no point in pretending that it is a popular system: a quick search through Google will unearth any amount of articles, blogs and opinion columns sticking the boot into what was supposed to be a genuine means of bringing justice to those that needed it, while saving taxpayers' money at the same time.
So it is refreshing to read an excellent article by Neil Rose in the Guardian that flies the flag for the 'no win no fee' concept.
CFAs were the brainchild of the Conservative Government in the mid-1990s, and for a significant amount of time they fulfilled their role sufficiently. Four years later, Lord Wolff, now under the direction of the Labour government, withdrew legal aid for personal injury and libel cases, and 'no win no fee' was now the arrangement whereby the average claimant in the street would hope to bring his case before the courts if needed.
Things started to go wrong, in the eyes of the nation's media, when the rules pertaining to the attribution of costs was changed to allow the claimant to recover the costs of both the 'success fee' and the after the event insurance from the defendant if the former won the case. In the words of Rose, 'all hell broke loose.'
"The costs war, as it is known, has raged in the courts ever since, with defendants trying anything to get out of paying; a key problem with CFAs is that the claimant has no stake in the costs his solicitor is running up. Personal injury cases have been the main battleground and the Ministry of Justice has had to intervene several times in a bid to end hostilities."
There is also the disturbing fact that NHS cases, run under no win no fee jurisdiction, are starting to lose the government money since there is such a proliferation of them these days. This says, to my mind, more about the state of the health service than of any inherent problem in the method by which negligence cases are brought to court.
The reason that Rose has been moved to write this article is that Lord Lester, as part of his moves to overhaul Britain's libel laws, has recently spoken out about what he views as the 'scandal' of CFAs with 100% success fees.
A success fee, for those who don't know, is simply a fee paid to the lawyer if he wins the case. The proportion of it in comparison to the solicitor's fees are a barometer of the inherent riskiness of the case: the higher the figure, the more likely it is that the barrister thinks it is that he will lose.
The only cases that really attract the controversial full-whack payment are libel cases. These, along with personal injury cases, also qualify for the no win no fee arrangement.
The argument goes that most of the parties seeking to bring such litigation could probably afford their legal fees anyway, as they would have to if moves to replace the CFA with the old pre-recoverability rules.
Which brings me to the main point: the times when without 'no win no fee', some very worthy cases and claimants might not have come to light.
Freedom of information campaigner Heather Brooke was able to investigate the MPs' expenses scandal with aid of a no win no fee lawyer. Rose also cites the cases of the Corby water poisoning and of nurses (falsely) accused of abusing children in their care.
Rose concludes his article with the line, 'While it may be perfectly reasonable for a celebrity who has been bad mouthed in a tabloid to pay over some of their damages to their lawyer, the argument becomes markedly less attractive when you are talking about a paraplegic whose life has been ruined by someone else's reckless driving.'
You really can't say fairer than that. While there are two sides to every story, the sheer number of horrendous personal injury cases out there should be a case for keeping no win no fee out of the fire for now.
About the Author:
Richard Craig is a UK-based personal injury writer and blogger writing on behalf of the Accident Advice Group, with particular interest in no win no fee litigation.
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