News — The Future of Law Costs in Australia

Access to justice has been a top priority for law reform bodies throughout the United Kingdom in the last 2 decades.

 

The first major reform occurred in 1996, when Lord Harry Woolf released his final report (‘the Woolf Report’). The Woolf Report recommended sweeping reforms to the civil justice system aimed at increasing access to justice, in particular, addressing the problematic areas of rising legal costs and inequality of access to justice dependant on wealth. One of the Woolf Report's recommendations was to change the structure of the conditional fee arrangement, by allowing lawyers to enter into a conditional agreement in any type of claim (except family or criminal law claims) with the added enticement (for lawyers) of a ‘success fee’, if the claim ultimately succeeds. The intention behind the recommendations was to provide access to justice for low and middle income earners.

Many of Lord Woolf’s reform recommendations were well received throughout the United Kingdom. On 27 July 1999, the Access to Justice Act 1999 (‘AJA’) was enacted. The AJA was a means to redesign the court and civil justice systems throughout England and Wales. One of the legislative purposes of the AJA Act was to legalise access to conditional fee arrangements in all areas of law, allowing success fees to be charged, and then made recoverable from the other party, in the event that the client was successful.  

In 2008, Lord Justice Rupert Jackson of the Court of Appeal of England and Wales was tasked with further reviewing the civil justice system.  On 21 December 2009, Lord Justice Jackson published his final report (‘the Jackson Report’) which recommended changes to the system, again in order to increase access to justice at a proportionate cost. Of importance is the fact that throughout England and Wales, litigants can now enter damages based agreements with their solicitors, a reform option which is currently a topic of debate and potential law reform in Australia.

Amy Pascoe is currently researching the effects of damages based agreements in England and Wales as a means to guide possible law reform in Australia.  We will keep you appraised of significant developments.