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Thursday, 30 August 2012

Who's Behaving Badly?

No win no fee agreements get a bad press.

The media and the insurance industry have even created a new public enemy – the no win no fee lawyer.

In fact these agreements have opened the door to justice for many ordinary people who could not otherwise afford to bring a case.

The reason the press dislike them so much is illustrated by the recent case of Neil Morrissey against the Daily Mail. The former star of Men Behaving Badly sued the Mail for libel after the paper had printed a story that he had behaved badly in a French bar – a story which it could not substantiate. In other words it was libellous. Morrissey accepted an apology and damages of £15k as an out of court settlement.

His lawyers ran the case on a conditional fee basis and the legal costs came out at £130k. The Mail has latched on to this as an example of the system being abused and lawyers claiming grossly excessive fees. It does seem a lot. But the solicitors’ and barristers are paid on the basis of the amount of work done. You have to put the hours in to earn the fees. The court assesses the work done and if it feels that the bill is excessive it reduces it. The Mail would have us believe that the lawyers just make up a figure, which is fanciful. The size of the bill is normally an indication that a defendant has aggressively fought a case before settlement. The earlier the settlement the lower the costs.

They also complain about an element of the costs which is called a success fee. This is an uplift on fees to compensate lawyers for those cases run under the scheme which fail. It used to be a deducted from damages but when New Labour wanted to remove most damages cases from legal aid they changed the law so defendants had to pay it. This will change again next year when we revert to the old way of doing it. But we can’t lose sight of the fact that the whole no win no fee scheme was created by politicians as an alternative to legal aid. Lawyers didn't create that system. They have to work within it and then take the flak when powerful corporations don't like it.

Without conditional fees it would not be possible for most people to sue wealthy newspapers for compensation.And if they didn't libel people in the first place....

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