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Last week, The Lawyer reported that SJ Berwin is preparing a US-style class action on behalf of pension fund investors against an array of US companies hit by corporate scandals. The firm is working on the case on a contingency fee basis, even though this is barred by the English Law Society. It is doing this by exploiting a loophole that allows such fees to be used as long as cases are handled in conjunction with a US firm.
Michael Payton, senior partner, Clyde & Co "All of us leading commercial litigation firms have to compete internationally. It is a disadvantage for us not to be able to offer contingency fees. It would be useful for us to have this restriction removed. We want to compete on a level playing field basis with other international firms, in particular the Americans."
Chris Beesley, admiralty business co-chair, Ince & Co "It has always been the case that English lawyers could share a contingency fee if instructed by a foreign correspondent engaged on this basis within the regulations governing that lawyer's practice. Whether they choose to accept those terms is another matter, as hourly rates offer comfort and certainty of profit. In my experience, US law firms are very conservative when it comes to accepting instructions on contingency terms. Generally, they will want expenses paid regardless and will only take cases where success and recovery is almost guaranteed."
Philip Bush, founder of the UK Mercantile Contracts Enforcement Agency "If truth be told, the Law Society should recognise that contingency fee litigation is here to stay, which simply indicates there is a market for it. If the idea is that the client should pay if the litigation is successful, what is wrong with that? We must be the only profession that charges its clients when our work is unsuccessful. I don't see any sense in this. It is time to wake up and smell the coffee."