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Lord Hoffmann was prompted to state :-
"......I feel considerable unease about the present state of the law. In this respect I do not
think that I am alone. There seems to be widespread recognition among those involved in
personal injury litigation that costs, particularly in relation to small claims, are getting out of
hand. They are excessive in relation to the amounts at stake (contrary to the principle of
proportionality), some elements (such as after the event insurance premiums) lack
transparency and, perhaps in consequence, too much time, money and court resources are
spent in disputes over costs."
(c)
Lord Hope cautioned :-
"...... unless the new regime is controlled very carefully, its effect may be to benefit ATE
insurance providers unreasonably and to place a burden on liability insurers which is
disproportionate. It may lead to a culture of incurring additional costs which lacks any
incentive on claimants to keep costs down."
It should be emphasised that in the foregoing discussion, the Working Party is not
seeking to express a view on the desirability or otherwise of either higher rights of
audience for solicitors or for the introduction of conditional fees.
On conditional
fees, the Law Reform Commission will make recommendations after it surveys
relevant opinion and completes its study of what is undoubtedly a complex subject.
The point of relevance for present purposes is that it should not be assumed that such
mechanisms necessarily result in reducing litigation costs, a matter of direct concern to
the present Report. Plainly, the opposite may sometimes be the case. It may be worth
noting that in the 5th survey conducted by the English Law Society's Woolf Network
in December 2002, 75% of respondents said that they did not consider conditional fee
agreements to be working.
Notes
At 2006 §18.
At 2015 §54.
Contingency fees whereby the lawyers take a percentage of the award, are not contemplated.
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