Concerns about the nature of the conditional fee arrangement (CFA) system have led the Bar Council's professional standards committee to cosider proposals for its reform. The move has been described as “offensive” by the Law Society.
A report by senior clerk at India Buildings Chambers Robert Moss proposes that barristers should intervene on behalf of lay clients in personal injury cases to ensure that their solicitors' advice is sound.
Moss wrote the report based on his experiences as a former solicitor. He said: “The public ought to be aware they now have a fundamentally different relationship with their solicitors [since the end of legal aid], who now take their part of the risk.”
Moss asserts that, under the previous legal aid system, lawyers acted solely in their clients' interest, but solicitors now have a commercial interest in the results of CFA cases. The report suggests that in such cases, barristers' expertise is vital as they can provide purely independent advice.
“The public ought to be aware that their solicitors now take their part of the risk”
Robert Moss, India Buildings
The bar committee, which is expected to draw its conclusions in several weeks, is considering whether barristers should be able to advise lay clients on the accuracy of their solicitors' valuations, risk assessments and on quantum.
It will also decide whether barristers can help determine if a case should be brought forward, and if there should be after the event insurance in so-called 'suspect cases' or ones where liability is not clear.
Fraser Whitehead, chair of the Law Society's litigation committee, described the proposals as “surprising and offensive”. He added: “It's disappointing that a barristers' clerk believes solicitors cannot deal with CFAs without putting their interests first.”
Irwin Mitchell personal injury head John Pickering said that his experience of CFAs has been satisfactory. “Solicitors and barristers are governed by professional rules which should ensure proper advice is given.
“I can think of examples of cases that have been discussed with barristers who have started bullishly, but which have ended sensibly.”
He added that there are no alternative funding options available at present.