CFAs: silk criticises impact of 100% success fees

It is only in the rarest of libel cases that a claimant would need 'the skills of a litigation partner in a very expensive law firm', a leading human rights silk has claimed.


The opinion, from Keir Starmer QC and Anthony Hudson of Doughty Street Chambers in London, said there was nothing in article 6 of the European Convention on Human Rights (the right to a fair trial) that required a premier claimant lawyer to be instructed, 'so long as other competent lawyers charging a much more modest fee were available'.


Claimant lawyers have hit back, saying this would tip the scales unfairly in favour of defendants.


The opinion, reported exclusively this month in the Gazette's sister publication, Litigation Funding, was commissioned by Harvey Kass, legal director of Association Newspapers.


The pair bolstered their argument by reference to the alleged inimical effect on freedom of expression of the high costs concurrent with libel conditional fee agreements, especially when a 100% success fee is taken into account - which until now has been the main line of attack by defendants. If they operate so as to provide access to justice, this should not, according to the barristers, be 'so as to confer disproportionate benefits on legal practitioners or ATE [after-the-event] insurers, or impose unfair burdens on defendants or their insurers'.


Mr Kass said the system is anti-competitive. 'It serves to protect the "name" claimant firms at the expense of competent litigators interested in entering the field,' he said.


However, the opinion was attacked by Alasdair Pepper, a partner at top claimant firm Carter-Ruck. 'We are dealing with fundamental rights - freedom of expression and a fair trial,' he said. 'It cannot be right that against an array of wealthy media defendants, a claimant should be entitled to no more assistance than that of, say, a high street solicitor... who is simply not exposed to libel regularly enough.'