A contingency legal aid scheme would be fairer to all than the US-style funding system advocated by the government, insists Mike Williams

One of the most pervasive modern myths is that there has been an explosion in litigation, fuelled by the compensation culture.

The reality is that litigation is becoming more difficult for many people.

There are several reasons for this, but those in practice know that the lack of an adequate funding mechanism is central.

We do not know how many claimants have been forced to abandon substantial claims because the present funding regimes are of no help and they are simply without the means of pursuing their cases.

Civil litigation of any serious complexity is almost always against deep-pocketed major adversaries - banks, insurers, accountants and the like.

Few solicitors and fewer barristers are willing to run the risks of a long-term action against a major corporate adversary under a conditional fee agreement (CFA) even if suitable insurance cover were available.

Information about the number of these abandoned claims is important in trying to provide the solution - which is contingency legal aid funding.

It is practitioners who are aware of the viable cases that are not conducted and they who are most able to determine the need and operability of such a scheme.

The present CFA regimen does not help.

One trembles at the logic of the genius (presumably from the then Lord Chancellor's Department) who calculated that CFAs with success fees would provide legal cover for all claims of better than a 50% chance of success.

So what are my proposals? A contingency legal aid scheme would extend to all litigation.

Success fees would remain but would be payable into the fund.

Alone they would be insufficient.

Clients would have to contribute a proportion of their damages.

Politically unattractive perhaps, but practically much less unattractive than no redress at all.

It would not be obligatory to use the scheme.

Cases could be funded in the traditional indemnity way.

The present CFA cherry-picking system would be abolished.

Assuming the government actually believes in access to justice (rather than passing legislation named with the current Orwellian newspeak, even as ministers abolished swathes of civil public funding) it may even provide some pump-priming money in the first couple of years.

Solicitors will be paid at the appropriate court rate with no success fee.

Clients will receive their damages, subject to the percentage surcharge returned to balance the fund.

A fair evaluation process, based on merits, would operate.

The scheme should appeal to all.

It will cost the government little or nothing.

Lawyers could provide analytical legal services and not act as hucksters.

Last, but most important of all, it will provide many clients with the possibility of redress that at present is simply not available.

Not all the answers can be provided in such a brief space; and an obvious lacuna is insurance cover.

However, what is more important than a full set of answers at this stage is input from the profession if there is at least a germ of an idea to work on.

So responses - irrespective of what they are - would help to develop thinking and begin to address real and unmet need.

Chauvinism is not a virtue, but surely the ersatz US-style contingency funding that this government has espoused is not what we want for our clients, for the legal system or for ourselves.

Mike Williams is the Law Society council member for civil litigation