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Although not yet available to the commercial client, no win no fee arrangements undoubtedly appear attractive, offering, it seems, risk-free litigation and a carrot and stick incentive for the lawyers. However, the proposition that lawyers will try harder if their own money is at stake ignores the competitive instincts of
Instead, the commercial pressures on a lawyer who must win if he is to be paid could turn a legitimate desire to succeed into a need to win at all costs. With tens of thousands of pounds in costs riding upon success, the conflict imposed on a solicitor who discovers a document potentially fatal to his case is unlikely to create an environment in which lawyers' reputation for probity will be enhanced.
Perhaps the most damaging consequence of the conditional fee culture is that litigation ceases to be a professional relationship between adviser and client and becomes a business proposition in which the lawyer is the dominant partner. The lawyer assesses the strength of the case and also decides whether litigation is justified by reference to the risk of non-payment. If a cautious lawyer only handles cases he knows he can win, the client may lose the chance of winning a case with reasonable prospects of success; if the lawyer will take a risk, he drags the client with him.
The style and financial circumstances of the lawyer start to become the determining characteristics of the solicitor-client relationship. If lawyers are able to pick and choose cases, then the client will lose the benefit of conditional fee arrangements where they need it most, ie in those cases where the costs of the other side are likely to be high and the outcome of the case uncertain.
The lawyer offering conditional fee arrangements in strong cases would offer little advantage to clients. The cases they chose to back would probably have reached the courts on commercial grounds in any event. If the solicitor achieved the expected result they would achieve a bonus for, in effect, being competent, a situation unlikely to raise the status of lawyers in the respectable professions league.
In the light of Lord Woolf's proposals for civil reform, conditional fee arrangements could be a procedural cul-de-sac; the benefits litigants really need are more likely to come from the more cost effective procedures proposed.
Antony Gold is a partner at Eversheds, Manchester.