Government should not be swayed by ‘powerful vested interests’ opposing the introduction of a hybrid model for damages-based agreements, Lord Justice Jackson warned yesterday.
Speaking at the Law Society’s commercial litigation conference, the judge said he believed the government is ‘not currently persuaded’ of the need for hybrid DBAs.
Many lawyers have been reluctant to offer DBAs to clients since they became permitted in April 2013 as part of the Jackson reforms package.
The extremely low takeup has in part been blamed on the fact that the government’s DBA Regulations do not seem to allow a ‘hybrid’ model, which would enable lawyers acting under a DBA to offer a ‘no win, low fee’ arrangement, instead of an ‘all or nothing’ approach.
Jackson said he believes opposition to hybrid DBAs was probably coming from the same interests who opposed the introduction of DBAs during his costs review. He recalled the ‘abhorrence’ expressed by one group representing large corporates at the prospect of DBAs being introduced in England and Wales.
The judge said: ‘It is important that those in authority, if they are persuaded that a particular reform is necessary, beneficial, [or] in the public interest, then they should go ahead and implement that reform even if it involves standing up to powerful vested interests.’
Jackson noted that during his review there had been a ‘substantial appetite among lawyers’ for DBAs, but on a show of hands among nearly 100 delegates present, only four had actually done a DBA. He said the model was important for ‘modest and routine commercial cases where the client is quite willing to share their return if there is a low fee or no fee if they lose’.
The architect of the civil justice reforms advised litigators that, if they want to be able to offer hybrid DBAs, they should set up a ‘working group’ to analyse the issues in detail and ‘assemble the evidence’.
He said lawyers needed to put forward evidenced arguments as to why there is a need for DBAs; how they will promote access to justice; and how they have been used abroad without ‘ill effects’.
The judge added that lawyers needed to persuade the government by ‘the power of your arguments and the weight of your evidence’.