Access To Justice Going, Going .

Uncertainty over the future of Conditional Fee Agreements (CFAs) and After the Event (ATE) insurance to fund litigation continues with the present government's consultation on the civil litigation costs review undertaken by Lord Justice Jackson. This has been brought into sharper focus by the Legal Aid Sentencing and Punishment of Offenders Bill, in which, hidden away between extensive provisions relating to the further withdrawal of civil Legal Aid and major changes to the criminal law enforcement regime is a proposal that successful parties in litigation should no longer be able to recover the CFA success fee and ATE premium from the unsuccessful party.

The Lord Chancellor, in his address to parliament during the second reading of the Bill said that "the way in which the no-win, no-fee system operates many people, and in particular many small businesses live in fear of legal action". Compare that quote with the view expressed by Lord Davidson of Glen Clover as the House of Lords discussed the Bill - "people who have lost out to incompetent or fraudulent financial advisors, lawyers or accountants, will find that they will end up recovering less than they lost, despite having done nothing wrong. Under this Bill, the damaged, the blame free, will lose out; and for what overriding public good? It would no doubt be crude sloganeering to suggest that this is for the protection of insurance company profits, but one is left puzzled seeking to identify the clear policy objective justifying such consequences".

Undoubtedly, individuals or businesses contemplating litigation should be very concerned about the costs implications. However, many lawyers would contend that the government's proposals are driven by, and, if implemented, will benefit only the defendant insurance lobby adversely prejudicing the interests of ordinary people and their ability to seek access to justice.

The CFA/ATE marketplace has developed considerably since its origins in the narrow field of personal injury litigation. Nowadays, many businesses engage lawyers to seek legal redress on their behalf with the benefit of a CFA, without which they would not be able to pay for the services of lawyers or fund the risk of losing litigation. We have had direct involvement in seeking redress for both individuals and businesses, in claims e.g. for damages against perpetrators of fraud, compensation for professional negligence (where the defendant professional nearly always has its legal...