Coming to a grinding halt?

When the Conditional Fee Agreement (CFA) Regulations 2000 were drafted to include a provision that solicitors should tell their clients whether they have an interest in any insurance product they provide, did the authors mean that the CFA should be unenforceable when a solicitor fails to disclose that he has no such interest?

This idea was struck down by a circuit judge recently, and common sense says it cannot be a correct interpretation.

But the point was taken, and - as we reported in the past two weeks - the temperature over CFAs continues to rise, fuelled by a raft of technical challenges to claimant solicitors' CFAs (see [2002] Gazette, 7 November, 1, and 14 November, 3).

Of course claimant solicitors should ensure that their CFAs comply with the regulations (in so far as is possible considering the regulations may lack pin-point accuracy), but is the defendant insurance industry doing itself any favours by fishing around for flaws?

CFAs were introduced to provide access to justice to those now denied legal aid, and claimant solicitors accuse the other side of trying to undermine the system for their own benefit.

For as long as that argument has weight, defendant solicitors' claims to be acting in the public interest as well as their own clients' interests will ring hollow to many.

In its ruling in Callery v Gray earlier this year, the House of Lords said it was for the Court of Appeal to regulate practice in this area.

This it needs to do quickly and authoritatively, or the system will come grinding to a complete halt.