Contingency fees, a much-expanded fast-track with fixed fees, and a contingent legal aid fund are at the heart of a major report into the future of funding court action, which has been seen exclusively by the Gazette's sister publication, Litigation Funding.

The Civil Justice Council (CJC) recommendations aim to widen the funding options for litigants, ensure costs are proportionate and improve access to justice.


They were drafted by Senior Costs Judge Peter Hurst, former Law Society President Michael Napier, leading academic Professor John Peysner and CJC chief executive Robert Musgrove. They also have the support of Lord Phillips, the former head of the CJC, who this week became Lord Chief Justice.


The report called on the government to consider the introduction of contingency fees as a funding method of last resort where no other options are available, especially in group actions and other complex cases.


Rejecting US-style contingency fees because they would spell the end of the costs-shifting rule - and with it much of the incentive to settle - the report commended the system of regulated contingency fees allowed in the Canadian state of Ontario, where there is recoverability.


On the fast-track, the CJC said the limit should be raised to £25,000, with an opt-in for cases worth up to £50,000. It said the predictable costs scheme for pre-issue personal injury (PI) cases worth less than £10,000 should be expanded to take in all PI cases in the fast-track, pre- and post-issue.


Stronger use by the courts of estimates, budgeting and costs capping are key to making multi-track cases work better, the report continued.


Various forms of contingency legal aid funds - self-financing schemes that supplement the basic legal aid scheme - have been put forward over the years by legal and other bodies. The CJC backed a fresh look into the idea, expressing concern that the conditional fee system is still leaving middle-income earners without proper access to justice if they cannot afford after-the-event insurance.


Graham Huntley, president of the London Solicitors Litigation Association (LSLA), welcomed efforts to improve access to justice but warned that defendants would need sufficient information if contingency fees were brought in. 'However, the LSLA sees much greater dangers in applying [consumer] logic to all multi-track cases, since by definition this will cover major commercial litigation.'


Mr Huntley also slated costs capping, warning that it would drive overseas commercial clients away.


A full rundown of the report is in this month's issue of Litigation Funding, published next week.