Confusion will reign unless Government clarifies terms used in DBA regulations
From the beginning of April, for the first time, lawyers will be able to conduct litigation before the English courts in return for a share of any damages. The introduction of contingency fees, or damages-based agreements (DBAs) as they are now called, was recommended in Lord Justice Jackson's final report in January 2010 and is being implemented by section 45 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Lord Jackson favoured the introduction of contingency fees in part because he considered it desirable that as many funding methods as possible should be available to litigants. He also saw particular force in the freedom of contract argument: if the client wishes to enter into a contingency fee agreement with their lawyer, they should be free to do so. We agree, but it seems that the new regime will be hampered from the outset by unnecessary complexity and confusion. On 23 January, just over two months before the legislation is due to come into force, the Government published the draft Damages-Based Agreements Regulations 2013, which set out the requirements a DBA must meet in order to be enforceable.
‘No win, no fee’ or ‘No win, low fee’? That is question posed by law firms, say Ted Greeno and Maura McIntosh
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