The government this week threw its weight behind the use of conditional fee agreements (CFAs) in pro bono cases.
Issuing a consultation on reform of the CFA regime, the Department for Constitutional Affairs (DCA) acknowledged the use of CFAs in pro bono ‘may raise some ethical concerns’, but backed work by the Attorney-General’s pro bono committee to produce guidance and model CFAs.
Former Law Society President Michael Napier, who is the Attorney-General’s pro bono envoy, said the committee had looked at the issue ‘long and hard, and come to the conclusion that [CFAs] might work’.
He argued that unsuccessful defendants in pro bono cases should not escape paying costs - under the committee’s plan, costs recovered would go either to the organisation behind the case or possibly a fund established by the law firm to support its pro bono activities.
The reforms also back the plan put forward last year by the Master of the Rolls, Lord Phillips, to simplify CFAs by moving client care provisions from the CFA regulations to the Law Society rules.
This would end many of the technical challenges that have bedevilled CFAs since the introduction of recoverability in 2000. The DCA has commissioned research into the impact of recoverability, which should be completed in early 2005.
However, the DCA chided lawyers and insurers for ‘all too easily’ absolving themselves of any responsibility for the difficulties that have arisen since 2000. ‘Clearly the behaviour of some lawyers, intermediaries and defendant insurers and their lawyers played a major part in the problems encountered,’ it said.
Emphasising that CFAs remain its preferred mechanism for funding claims, the DCA said it will continue to work with the Civil Justice Council and others to determine if there is a common solution to abolition of the indemnity principle, ‘and crucially what should replace it. A consensus does not currently exist in respect of replacement’.
The consultation paper also rejected calls by newspapers to restrict the use of CFAs in libel actions. Taking note of the recent Court of Appeal ruling in Musa King (see [2004] Gazette, 20 May, 5), it supported courts’ ‘vigorous use of the existing and extensive case management and costs control powers’.
Issuing a consultation on reform of the CFA regime, the Department for Constitutional Affairs (DCA) acknowledged the use of CFAs in pro bono ‘may raise some ethical concerns’, but backed work by the Attorney-General’s pro bono committee to produce guidance and model CFAs.
Former Law Society President Michael Napier, who is the Attorney-General’s pro bono envoy, said the committee had looked at the issue ‘long and hard, and come to the conclusion that [CFAs] might work’.
He argued that unsuccessful defendants in pro bono cases should not escape paying costs - under the committee’s plan, costs recovered would go either to the organisation behind the case or possibly a fund established by the law firm to support its pro bono activities.
The reforms also back the plan put forward last year by the Master of the Rolls, Lord Phillips, to simplify CFAs by moving client care provisions from the CFA regulations to the Law Society rules.
This would end many of the technical challenges that have bedevilled CFAs since the introduction of recoverability in 2000. The DCA has commissioned research into the impact of recoverability, which should be completed in early 2005.
However, the DCA chided lawyers and insurers for ‘all too easily’ absolving themselves of any responsibility for the difficulties that have arisen since 2000. ‘Clearly the behaviour of some lawyers, intermediaries and defendant insurers and their lawyers played a major part in the problems encountered,’ it said.
Emphasising that CFAs remain its preferred mechanism for funding claims, the DCA said it will continue to work with the Civil Justice Council and others to determine if there is a common solution to abolition of the indemnity principle, ‘and crucially what should replace it. A consensus does not currently exist in respect of replacement’.
The consultation paper also rejected calls by newspapers to restrict the use of CFAs in libel actions. Taking note of the recent Court of Appeal ruling in Musa King (see [2004] Gazette, 20 May, 5), it supported courts’ ‘vigorous use of the existing and extensive case management and costs control powers’.
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