The Law Society has been given permission to intervene in a Court of Appeal case on civil litigation funding which it claims could ensure access to justice for many clients in the wake of the government’s proposed legal aid cuts.
The case concerns a challenge by the London Borough of Southwark to the High Court’s ruling that a conditional fee arrangement in two housing disrepair cases, where the solicitor had also indemnified their clients against any adverse costs order if they were unsuccessful, was lawful.
The claimants’ solicitors, London firm Belshaw & Curtin, did not have a legal aid contract for housing work. As the claimants could not afford the after-the-event insurance premium, the firm offered to provide the costs protection to enable their clients to proceed with the claims.
The council lost the claims, which concluded in 2008, and when faced with the liability for the claimants’ costs, alleged that the funding arrangement was unlawful on the basis of ‘maintenance and champerty’. Historically, these concepts were aimed at prohibiting people from interfering with and profiting from litigation to which they were not a party.
The local authority asserted that the indemnity potentially compromised the independence of the solicitor, as it gave the firm a financial interest in the outcome of the litigation.
Firm principal Andrew Curtin said: ‘At a time when legal aid is being cut back, many litigants will be without representation, and this type of CFA offers a funding package that is equal to, if not more beneficial than, a public funding certificate. The importance of the indemnity is that it offers clients protection similar to that provided to legally aided clients under the Administration of Justice Act.’
Law Society president Linda Lee said: ‘As far as I am aware, the solicitor has not breached any professional conduct rule and has gone out of his way to assist clients with what were clearly valid claims, which they would not otherwise have been able to pursue.’
She likened the indemnity arrangement to instances were solicitors pay disbursements up front: ‘Agreements of this nature are likely to become more prevalent in the future, and we need to clarify the position for the benefit of the profession and access to justice.’
The Court of Appeal, including Lord Justice Jackson, will hear the case in December.