Sharing out the CFA workload

Conditional fee arrangements can work – if barristers are willing to change, says senior clerk Clark Chessis. Clark Chessis is senior clerk at No 1 Serjeants' Inn, the chambers of Edward Faulks QC. "Why should I work for nothing?" pleaded a barrister in my chambers when offered a set of conditional fee instructions 12 months ago. The answer, of course, was that the firm of solicitors sending the papers was unlikely to take on work if it was not going to get paid. If it was prepared to take on the case, why shouldn't we?

Over a year later, and with 60 conditional fee agreements (CFAs) in operation, the view in chambers is much more relaxed. More than half of the tenants have undertaken conditional fee work for plaintiffs in personal injury cases.

Even in a set such as ours, where the majority of personal injury work is for defendants (usually insurers), CFA work represents an opportunity and not a threat.

Admittedly, we would be more cautious about accepting conditional fee instructions from a firm of solicitors with which we had no existing relationship.

We need to rely on the risk assessment made by the instructing firm. As senior clerk, I am much more comfortable agreeing CFA terms with a solicitor that I know well and who instructs members of chambers on a regular basis.

Having said that, we still need to have our own system of risk assessment as a back-up. I discuss with the barrister concerned whether they are happy to accept the case on a conditional fee basis.

The barrister will need to invest some time in reading the papers, but we would not usually charge for this initial assessment unless there are a large number of papers or the issues are particularly complex.

If that barrister is happy to proceed, then I negotiate the CFA with the solicitors using the Association of Personal Injury Lawyers and Personal Injury Barristers' Association agreement as amended in April 1998.

I usually accept the same "uplift" as the solicitors, although I will negotiate a different uplift if we feel the solicitors have undersold themselves.

If the barrister I first approach is not willing to take the case on a CFA basis, I will ask another barrister for their opinion. If they agree with the risk assessment of the solicitors, we will proceed with the case. If not, I will return the papers to the solicitors.

One of the interesting issues that will emerge from the Woolf reforms is whether barristers will be able to adopt a "corporate" approach to "no win, no fee" litigation. As I said before, the new system brings great opportunities. But it will require a change of attitude for most counsel.

If a CFA case is accepted by one barrister who is then unavailable to appear when it comes to trial, another barrister in chambers must be prepared to take the case on the same terms. If we cannot offer this service, solicitors will stop sending work – and who would blame them?

If a chambers decides to undertake CFA work, that must be a collective decision. The work needs a team approach to provide back-up and support, as well as the range of experience which may be needed.

If barristers have not moved from the traditional "each for his own" position, they will not be ready to support each other in CFA work. An individualist approach will not allow a set of chambers to succeed under the new regime.

Now that conditional fees have been extended to all civil litigation, even the most reluctant counsel will need to leap from relative safety into the unknown. By working with solicitors in whom clerks have confidence and with firms that have reliable risk assessment procedures, any danger can be minimised.

And if barristers trust each other to work collectively for the good of chambers, everyone will benefit.

The service offered to solicitors must be updated constantly – we must respond to the challenges they face in a highly competitive market. That may mean hard choices, but a corporate approach to CFAs is a good start.