Bar Council cautions against introduction of contingency fees without proper consultation

THE Bar Council has submitted its response to the Ministry of Justice’s consultation on Damages Based Agreements (DBAs). Costs specialist barrister Nick Bacon has led the Bar's response on the principle of permitting DBAs, particularly their use in contentious business. The Bar Council is strongly of the view that any further consideration of this fundamental question should at least await the findings of the Jackson Review, due to report later this year, and that their introduction via the Coroners and Justice Bill should be halted until this significant issue has been considered by Lord Justice Jackson.


The Bar Council is concerned that the Government proposes to place contingency fees on a statutory footing, via an amendment to the Coroners and Justice Bill, currently progressing through the Houses of Parliament. While the Bar Council readily accepts that in those areas where contingency fees are currently permitted (non-contentious business undertaken by solicitors), regulation to fulfil legitimate consumer protection concerns is justified, and notes the observation in Lord Justice Jackson’s Preliminary Report (published on 18 May 2009) that the unregulated use of “contingency fee” agreements in Employment Tribunals jurisdiction is open to abuse, it remains of the opinion that such a central issue should be subject to proper examination and consultation.

Commenting on the consultation, Nick Bacon said: “The Bar Council urges the Government to abandon its attempt to place contingency fees on a statutory footing pending full consultation. What is being proposed in the Coroners and Justice Bill as currently formulated is a wholesale reversal of the law against contingency fees. It is astonishing that such a fundamental shift in policy should not be preceded by wide and open public debate and consultation. The Bar Council is unable at this juncture to express a definitive view as to whether its membership would or would not support the abolition or even relaxation of the prohibition against the use of contingency fees in contentious and non-contentious business in the future. It can only be following a comprehensive consultation and public debate that a question so fundamental as this can be answered.”

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