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Kawaley makes case for contingency fees

Chief Justice Ian Kawaley (File photograph by Akil Simmons)

Chief Justice Ian Kawaley has renewed his call for contingency fee arrangements to be allowed in Bermuda to enable more people to access the justice system.

Mr Justice Kawaley refuted the Ministry of Legal Affairs’ recent claim that it had not received a “compelling case” for change and maintained it was important to promote access to the courts for those who could not afford legal representation.

But Trevor Moniz, the Attorney-General, warned that allowing contingency fee arrangements would put even more stress on an already struggling court infrastructure.

“The Chief Justice and magistrates tell me they do not have the resources to do the work they have at the moment,” Mr Moniz said.

“We have no money to increase the size of the judicial system by creating more courtrooms or appointing more judges, and there is no doubt that allowing contingency fees would greatly increase the workload of the courts.

“It would result in more cases against Government and our limited resources being even more stretched.

“There are those in the legal profession that oppose contingency fee arrangements and believe they can have very negative effects on a society.”

The Chief Justice told The Royal Gazette that the rise in the number of litigants in person, who represent themselves during proceedings, was creating new challenges for courts and judges to tackle.

“I have a bit of a personal attachment to contingency fees and promoting access to justice to people who are not completely impecunious but have too much money for Legal Aid and not enough to afford a lawyer,” the Mr Justice Kawaley said. “That is quite a significant segment of ordinary people.

“In January 2013 I made reference to the fact that the Legal Aid system was unsustainable to ensure access to justice and that one needed to implement some form of contingency fees system. That model was taken up by the Bar Council who have formulated proposals. I was disappointed to hear the ministry say that the case for contingency fees had not been made out, because from my standpoint it is difficult to see how that case could be clearer.

“If Government recognises that access to the courts is an important right, then it is difficult to see why they would not want to facilitate the enjoyment of that right to the largest body of persons.”

Under a conditional fee agreement, legal practitioners charge an agreed uplift on the usual fees if they win, whereas under a contingency fee agreement, lawyers’ fees are calculated as a percentage of the amount awarded by the court.

In August 2012, the Bar Association put together a sub-committee, chaired by Mark Chudleigh, to determine whether conditional or contingency fee agreements should be permitted for civil cases in Bermuda.

After a period of consultation, the sub-committee issued its final report in October 2014 together with draft proposed legislation.

The report has not been acted upon and the Bermuda Bar Council has accused Mr Moniz of turning a blind eye to the proposals.