Important changes to English litigation costs — part 1

By Jonathan Haydn-Williams

An exchange from Shakespeare’s pen probably still represents a widely held view that lawyers will do anything for money and nothing without it. It is certainly the case that English common law developed, over centuries, the doctrine that a lawyer should not conduct litigation on the basis that he would be paid only in the event of success: rather than ‘no win, no fee’ it was a case of ‘no fee, no breath’.

However, over recent years, partly to increase access to justice and partly to reduce the government’s legal aid bill, English law has been changed to allow conditional fees (‘no win, no fee’ or ‘no win, lower fee’). Allied to this has been the development of insurance against the risk of losing and having to pay the opponent’s legal costs (known as ‘After the Event’ or ATE insurance when purchased after an event giving rise to a claim has occurred).

A series of controversial and significant changes are shortly to be introduced which, depending on one’s viewpoint, may reduce access to justice for some, whilst increasing it for others and place some losing parties in a fairer position, but some in a worse one. The changes are to (or are likely to) take effect on or after 1 April 2013. If they affect you, you may need to take action well before that date. In particular…

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