Conditional fees set to go ahead despite judge's fears

CONDITIONAL fees look set to be laid before Parliament soon after Easter despite a string of complaints about the draft rules by key advisers to the Lord Chancellor.

Lord Mackay is taking another look at his controversial “no win no fee” proposals after the Lord Chancellor's Advisory Committee on Legal Education and Conduct (Aclec) expressed its “continuing concerns” in a recent letter to him.

But a spokeswoman for his department says it is hoped conditional fee rules will be laid before Parliament “not long” after Easter. She says Lord Mackay is committed to getting them approved “and feels the arrangements are the right ones”.

The letter to the Lord Chancellor by Aclec chair Lord Steyn raises concerns over the proposed 100 per cent uplift on fees, the lack of a limit on the proportion of damages payable towards fees, insurance, and arrangements between barristers and solicitors which he says may be ultra vires.

Lord Steyn says the committee is concerned that such a high uplift on fees will “create far too great a risk that any damages recovered will be swallowed up in legal fees” and the committee “remains wholly opposed to the current proposal”.

He goes on to call on the Lord Chancellor to set a limit on the proportion of damages that can go towards fees, disagreeing with Lord Mackay's own assertion that he is not empowered under the 1990 Courts and Legal Services Act to do so.

The letter urges that conditional fees are delayed until provisions for taxation, still under consultation, and insurance arrangements are finalised. It says arrangements stipulated in the proposals between solicitors and barristers, including the agreement of a retainer, are probably ultra vires.

David Hartley, of the Law Society's professional policy executive, says the draft rules will increase access to justice and should be enacted as they stand.

“We think these issues have been dealt with adequately already,” he says.