Thu, 23 May 2013
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CFAs breach human rights laws, ECHR rules in Naomi Campbell costs case
No system will ever be perfect but the present system is a lot closer to providing a fair system for access to justice that the potentially disasterous alternatives being proposed. It's not practical to means test CFAs per se. Furthermore, were someone to have say a net wealth of £1m (including domestic home etc..) and are unfortunate enough to find themselves faced with a legal cost exposure of say £700k, are they expected to risk everything in a dispute against a large corporation? Doubtless many of the vocal high paid stakeholders supporting the abolition of recoverability are not of limited means, but were they ever directly involved in litigation against a super defendant presumably there would be a cap to their personal wealth beyond which no reasonable person would gamble everything? Stripping of recoverability will result in a regressive system directly hitting those of limited means the hardest. Defendants can tactically seek to drive up costs knowing full well they can push the claimant into a settlement at undervalue, since the longer the case runs the higher success fee/premium the claimant will have to pay their lawyers. How is that access to justice? Are we not a Country that prides itself on having a legal system that seeks to put the suffered party back in the position they were before the acts of the wrongdoer? The UK isn't considered a jurisidiction for providing fanciful high damages awards. If clients have to utilise a significant proportion to pay contigency fees/success fees and premiums no such claimant will ever feel they've been made whole as a result of the wrongdoers acts.
Furthermore, there is the small matter of the quality of legal representation. Whereas a super defendant will doubtless select a leading law firm/QC to represent their interest, in a non recoverable system the claimant of limited means will need to be mindful that the uplift of their solicitors/counsel's fee will impact on their net recovery. Claimants could then be faced with far from evenly matched representation purely to protect their net recovery. Wasn't the thrust of Lord Jackson's proposals to provide access to justice at proportionate cost? There are ways of dealing with proportionality but with the proposals as they stand we are fast heading towards a system that is going to destroy access to justice for many who need it most simply because of the unique, and they are unique in their own right, nature of libel and personal injury litigation where admittedly they is a need for reform.
Does anyone spare a thought for the SME businesses and the sandwhich classes involved in litigation?
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