A working alternative to recoverable success fees?
As the tension mounts as to what might be going through the mind of Lord Justice Jackson as he prepares his final report on his civil costs review, might he be influenced by the litigation landscape north of the boarder? The recently published Report of the Scottish Civil Courts Review states that the majority of damages claims in Scotland are pursued on the basis of "speculative fee arrangements" (no win, no fee agreements). This is despite the fact that: "Unlike in England and Wales, success fees and ‘after the event’ insurance premiums are not recoverable and will have to be paid by a successful [claimant] from the damages recovered, unless they are waived or absorbed by the [claimant's] solicitor". Jackson LJ's Preliminary Report raises a number of concerns about the English system of recoverable success fees and ATE premiums. If non-recovery seems to work in Scotland, why not here?
And while Jackson LJ may be looking north of the boarder, they are looking back. The Scottish report concludes: "We have given careful consideration to the use made of speculative fee arrangements in this country and the experience of conditional fee agreements in England and Wales. We consider that it would be premature to recommend any changes to speculative fee agreements as they are presently constituted in Scotland. The civil costs review in England and Wales chaired by Lord Justice Jackson should be monitored for its research findings and its conclusions"
Deep-fried Mars Bar anyone?
And while Jackson LJ may be looking north of the boarder, they are looking back. The Scottish report concludes: "We have given careful consideration to the use made of speculative fee arrangements in this country and the experience of conditional fee agreements in England and Wales. We consider that it would be premature to recommend any changes to speculative fee agreements as they are presently constituted in Scotland. The civil costs review in England and Wales chaired by Lord Justice Jackson should be monitored for its research findings and its conclusions"
Deep-fried Mars Bar anyone?
Click image to enlarge:
Labels: ATE, CFAs, Queen's Counsel
posted by Simon Gibbs at
5:09 AM
2 Comments:
The judicial and damages system in Scotland, is rather different to England and Wales.
Also,let us not forget, originally the ATE and Success fee were not recoverable here either, but the Government in its wisdom elected to foist the cost of litigation fully upon the Defendants and their insurers. They in turn have responded by raising so much argument, as to cripple the system leading to the present reviews.
What the artical demonstrates, is that the Scots remain as astute as ever in thinking matters through fully.
2 small points otherwise Simon. "Boarder" is someone whom boards, as in a pirate. Scotland is over the Border. Freudian slip perhaps, given the poor "mars bar" joke? Also, the "deep fried mars bar" thing is as stereotypical myth as believing all Scots are short with ginger hair!
By
Anonymous, At
04 December, 2009 09:36
Me? Make broad generalisations about whole groups (such as claimant solicitors)? Surely not.
By
Simon Gibbs, At
04 December, 2009 16:13
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