By Rebecca Zuill- Royal Gazette
The structure of legal fees is under review by the Bermuda Bar Association.
The President of the Bar Association Justin Williams has formed a subcommittee to consider whether conditional or contingency fee arrangements are feasible for Bermuda’s legal profession, if they should be permitted for civil cases and, if so, to what extent. They have also been charged with recommending any appropriate changes in the law.
Mr Williams, a barrister who also sits as an acting magistrate, coroner and chairman of Family Court, added a ‘conditional fee’ arrangement permits a lawyer to accept cases on a ‘no win, no fee’ or on a ‘success fee’ basis, which permits the lawyer to charge an enhanced fee in the event that litigation is successful but a lower fee if unsuccessful. A ‘contingency fee’ enables the lawyer to take a share of any damages that are awarded to the client instead of charging the client a conventional fee. Such arrangements are permitted in many common law jurisdictions, including the United States, the United Kingdom, Canada, Australia and New Zealand.
“As matters stand, conditional and contingency fees are not permitted in Bermuda,” said Mr Williams, adding: “Although many Bermudian lawyers are understandably wary of the litigation culture that prevails in the United States, as our society becomes increasingly complex and more people need to avail themselves of the civil justice system, we must ensure that large segments of our society do not become disenfranchised and precluded from asserting or defending their rights in the civil courts.
“It is clear that the needs of many members of our society cannot be met from personal resources or from public funds via legal aid. An alternative must be found.”
The Bar Association’s review is in line with comments made by the Chief Justice Ian Kawaley who called for measures to help people access justice in civil cases in a speech commemorating the beginning of the legal year in January. He commented: “The cost of civil justice is a major threat to the ability of ordinary litigants to enjoy the right of access to the courts which is an element of the right to a fair hearing in civil cases.” He noted the scope of civil legal aid had been cut in recent years in Bermuda and suggested that consideration be given to the introduction of conditional fees, along the lines of those permitted in the UK.
Bermuda Online’s cost of living section called legal costs ”very high, averaging in Bermuda about $600 an hour”.
Mr Williams noted that the legislative regime in the United Kingdom, which first introduced conditional fee arrangements in 1995, has evolved to the point where contingency fees arrangements have been permitted since 1st April of this year.
Lawyer Mark Chudleigh, who chairs the Bar’s subcommittee, commented: “Although similar in many respects to the US system, the UK arrangements are more heavily regulated and the UK costs rules, which are similar to Bermuda’s, act as a strong deterrent against frivolous litigation as the losing party generally has to pay a portion of the winner’s legal costs.”
Mr Williams said if Bar Council approval is forthcoming, the Association hopes to be able to provide proposed draft legislation to Government by the autumn.
Anyone who wishes to express a view on whether conditional or contingency fees are appropriate for Bermuda are welcome to contact the Bermuda Bar Association at firstname.lastname@example.org or by calling 295-4540.