Lawyers who proceed with unreasonable cases under conditional fee agreements should be liable for the costs of the case, according to the vice-chancellor, Sir Richard Scott.
Addressing a county court advisers' group conference on the theme of access to justice last Friday, Scott said the level of lawyers' fees in civil litigation presented an “almost insoluble” problem which needed to be addressed.
Outlining his vision for reform of the civil justice system, he said Lord Woolf's proposed reforms would only bring about marginal savings and that a rethink of some basic propositions was needed.
“I would like another look to be taken at the rule that requires losers to pay the winners' costs,” he said. “There would be a good deal to be said for a new approach so that the loser is not liable, unless and to the extent that, the prosecution or defence of the case was unreasonable.
“I would like thought to be given to taking further the principle that the person who finances the litigation should be liable to pay costs.”
Scott said that he would like to see the costs principle extended to lawyers acting under conditional fee agreements. He said that if lawyers brought unreasonable cases he found it “quite difficult to see why the costs should not be funded by the lawyer”.
He added : “I've never been able to see why the Legal Aid Board should not be expected to pay the costs of the winner if the action failed.”
Scott said he would also like to see conditional fee agreements extended to all contract, tort and arbitration cases and greater use of litigation cost insurance.