The Ministry of Justice has this week announced that the implementation of its controversial reforms to “no win, no fee” (conditional fee) agreements will be deferred by six months to April 2013.
The reforms, which appear within part two of the Legal Aid, Sentencing and Punishment of Offenders Bill, currently at the committee stage in the House of Lords, were expected to be implemented in October this year, and the delay follows one previously announced at the end of last year to the legal aid reforms in part one of the Bill.
The announcement has been welcomed by the Law Society. Desmond Hudson, the Chief Executive, said: “’The delay will give a welcome breathing space for the Ministry of Justice to now properly consider the damaging effect these changes to ‘no win, no fee’ agreements will have on access to justice, particularly for middle England and those ineligible for legal aid.
“The changes are complex and have been selected from a recent report from Lord Justice Jackson- despite his warning not to ‘cherry pick’ from the report.
“As presently conceived, we fear that the changes will advance the interests of insurance companies at the cost of access to justice and fairness. This delay gives time to pause and reconsider.
“We urge the government to consider all the representations made to them, including those made by victim groups and charities – so ably represented by members of the House of Lords in the debate on the changes last night – to the same extent that it has considered representations by the powerful insurance lobby.”
As Mr Hudson mentioned, a number of peers were critical of the proposed reforms during the committee stage debate on 30 January. These included several who spoke about the impact of the proposals on defamation and privacy cases. Lord Bach (who described the reforms in the context of professional negligence claims as “something of a rogues’ charter”) cited the example of the Dowlers, who used a conditional fee agreement to pursue their claim against News International over the hacking of their daughter Milly’s phone. He quoted from their letter to David Cameron in which they said “We are sure you do not want to go down in history as the Prime Minister who took rights away from ordinary people so that large companies could print whatever they like and break the law without being able to challenge them.” In response to a point made by Lord Lester that there are defendants in defamation cases who are not powerful Lord Bach also pointed out that “defendants can and sometimes do use CFAs in cases of this kind”.
Lord Prescott, who has pursued his own phone hacking claim against the News of the World, said that the Bill “moved power and resources to the wealthy and more powerful and away from the individual, and that the individual was going to be the victim because they were seeking legal redress. These amendments will make it much more difficult to achieve that. It is really about strengthening the more powerful in our society, particularly in regard to individuals and the press”. Lord Martin, the former Speaker, said “This is what worries me about the lack of no win no fee. I am not concerned about the rich and famous, I am concerned about ordinary men and women, who maybe only once in their life have been defamed by a newspaper. At the Leveson inquiry one former editor said, ‘If it sounds good or if it sounds like the truth, just lob it in’ – just to lob it in for a woman or man who is living a private life is very cruel and hard.”
Carter-Ruck has represented many such “ordinary men and women” (see here for examples) on the basis of conditional fee agreements, not only in defamation and privacy cases, but also in claims involving professional negligence, including financial misselling, breach of contract and general commercial claims. If the delay which is now to take place means that the voices of the critics of the Bill are heard and that the reforms when finally implemented continue to allow such “ordinary men and women” to have access to justice across the whole range of civil claims, then it is very much to be welcomed.