CONTINGENT FEES: A SUPPLEMENT TO LEGAL AID?

DOIhttp://doi.org/10.1111/j.1468-2230.1978.tb00801.x
AuthorRobin C. A. White
Publication Date01 May 1978
CONTINGENT
FEES:
A
SUPPLEMENT TO
LEGAL AID?
I
THE
high cost of litigation has not escaped general comment in
recent times both in the public media and in professional journals.’
Reference
is
also made from time to time to the Civil Judicial
Statistics which show that the average amount allowed on bills by
the Supreme Court Taxing Office in actions and matters before the
Queen’s Bench Division for the year
1976
was
E799.
But it should be
noted that such statistics cannot show the actual cost of litigation
nor are they drafted with the consumer in mind but rather for
administrators, lawyers and legislators. In
1968
the Winn Com-
mittee3 showed that the majority of cases heard by the High
Court were the result of personal injuries. That Committee felt that
parties should be able to take their disputes to court and while the
relevance of the cost of doing
so
was not ignored, it is probably true
to say that the Committee considered the question of costs not from
the consumer’s point of view but as an aspect
of
the
bargaining
process to encourage settlement before trial and as a means of
penalising parties who abused the process.*
In
a
recent study of the cost of personal injuries litigation in the
Queen’s Bench Division, Michael Zander has discovered that the
average cost of contested cases and those settled at the door
of
the court exceeded
E1,000
and of those cases settled without any
court hearing approached
E500.5
The study was based mainly on
work done in the years
1971
to
1973
and
so
the figures must be
increased at least to take account of inflation to give today’s cost.
The current minimum income, after deduction of income tax, national
insurance and rent, required for an out-of-scope determination on an
application for legal aid in civil proceedings by
a
married man with
two children is
f3,446
per annum. This level of salary cannot be
considered as justifying the categorisation of its recipient as among
the wealthy, and yet any need to litigate must be financed solely
from his own resources. In the sample’used in Zander’s survey some
98
per cent. of the cases were the result of road and industrial
accidents. In
47
per cent.
of
the cases, legal aid had been granted,
but in many of the non-aided cases, insurers or a trade union would
1
See
e.g.
‘I
The Huge Cost
of
Going to Law,”
The
Sunday
Times,
November
10,
1974,
The Cost
of
Litigation-The Facts,” L.S.Gaz., November 20, 1974, and
Zander,
Costs of Litigation-A Study in the Queen’s Bench Division,” L.S.Gaz.,
June 25, 1975.
2
Cmnd. 6875 (1977).
3
Report
of
the Committee on Personal Injuries Litigation, Cmnd. 3691 (1968).
4
Zbid.
especially paras. 111-12 and 212-16.
For
an updated consideration
of
personal injuries litigation, see now Royal Commission on Civil Liability and Com-
pensation for Personal Injury, Cmnd. 7054 (1978).
6
Zander,
Cost
of Litigation-A Study in the Queen’s Bench Division,” L.S.Gaz.,
June 25, 1975.
286

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