In a briefing for Peers, it suggests that success fees could be funded equally by unsuccessful defendants and successful claimants. This would ensure claimants have an incentive to minimise their own costs, addressing the Government’s concerns, while maintaining access to justice for individuals who would not otherwise be able to fund their case.
The Bar Council says it believes success fees should remain recoverable from losing defendants, but recognises the need for compromise.
Part 2 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill proposes that claimants pay success fees from their own damages.
Charlie Cory-Wright QC, vice-chair of the Personal Injury Bar Association (PIBA) and a member of the Bar Council’s working group on the LASPO Bill, said: “The Bar Council is very seriously concerned about the government’s proposals which, against a backdrop of swingeing legal aid cuts, will threaten access to justice for all but those claimants with the most simple and certain of claims.
“The net effect of Part 2 of the LASPO Bill, which ‘cherry-picks’ recommendations from Lord Justice Jackson’s review of civil litigation funding, will be to deter ‘no win, no fee’ lawyers from taking on more complex cases. This will prevent many worthy claims from being brought, including clinical negligence cases involving complicated brain damage at birth, mesothelioma (asbestos poisoning) cases and cases in many areas of public law, such as housing and judicial review, where the inequality between claimant and defendant is at its most severe.
“The Government has been disingenuous in dismissing many of the Bar Council’s criticisms of the LASPO Bill as self-interested, while at the same time allowing the insurance industry to exert a disproportionate level of influence upon its policy-making. In fact, barristers provide independent representation to both claimants and defendants.
“The Government’s proposed reforms will not save the taxpayer money. The only groups who will benefit are insurance companies and negligent defendants, including employers, local authorities and other government bodies - particularly those against whom valid claims will now no longer be brought.”
The Bar Council has proposed an alternative means of funding for civil claims, during debate in the House of Lords on the legal aid bill.