Conditional fees in family law branded 'repugnant'

Family lawyers are outraged at the Government's decision to open family law up to conditional fees agreements (CFAs), describing it as “unworkable” and “ridiculous”.

Partners in the UK's top family law firms said such changes were “anti-family” and they had no idea they were being contemplated.

The Government's White Paper on modernising justice, released by the Lord Chancellor's Department last week, promised to extend CFAs into matrimonial property law, contradicting a decision in July that a no win-no fee system makes no sense in family law, an area where mediation is seen as more helpful than court battles.

The Access to Justice Bill says conditional fees are still not appropriate in cases regarding the care of children or domestic violence, but said: “They [conditional fees] offer a potentially attractive option in cases about the division of matrimonial property. We see no reason to prevent people from choosing to fund those cases by a conditional fee, rather than having to pay their lawyer win or lose”.

Leading family lawyers were shocked by the claim, asking how a win or loss would be judged. They questioned whether a settlement sum would be seen as a win, as it was more than the other partner offered, or a loss, as it was less than the client expected.

Family Law Consortium partner Gillian Bishop said the plan was nonsense.

“It won't work because it's not like personal injury where you either succeed or don't succeed. You don't win or lose in family law. Lawyers will have to promise very small amounts so whatever they get is counted as a win.”

Dawson Cornwell partner and Law Society Family Law committee member, John Cornwell, called the Government “a bunch of arrogant incompetents”.

“It makes me despair. Around 95 per cent of matters are settled by negotiation. There's no respectable view that can remotely justify this.”

Michael Napier, Irwin Mitchell partner and chairman of the Law Society's Civil Litigation committee said it was “a strange, unexpected provision and flies in the face of the spirit of the Family Law Act”, which is due to become law in 2001 and encourages mediation.

“It's repugnant because the last government and this government have both been trying to take the adversarial nature out of family law.”

“It's diametrically opposed to the Family Law Act,” added Levison Meltzer Piggott partner Simon Piggott, who is also vice-president of the UK College of Family Mediators.

“It seems the left hand thought up this piece of legislation, while the right hand was thinking up the other.”

He said the plan suggests the government's agenda is treasury-driven and is designed to cut costs at the expense of families.

One lawyer claimed that the profession would favour representing the wife in future cases, as she is seen as being more successful.