All conditional fee systems are bound to involve conflicts of interest. If, in a case worth pounds 100,000, the advocate is offered pounds 30,000 at the door of the court, his advice is bound to be tempered by his awareness that a bird in the hand is worth much more than the uncertainties of a trial. This sort of situation is painful to the advocate and unfair to the client.
Any firm of solicitors or set of chambers that operates too conservative a policy will lose work: any firm or set of chambers that operates too liberal a policy will lose money. Every case that involves an assessment of a person's state of mind, and that includes every case involving an allegation of fraud or dishonesty, will now be too speculative to take on. It is almost axiomatic that any case with a prospect of success that can be assessed at over 60 per cent should be settled in any event. We should have a system which results in only the uncertain and problematic cases going to court. These are just the sort of cases that are going to be denied a hearing.
Conditional fees will work to the advantage of those who can spread the risk. A large firm of solicitors which has won its previous 30 conditional fee cases may be able to take a flyer on the next two or three. A small firm of solicitors or an individual barrister may be crippled by three, two or even one large failure. The Bar cannot survive with the sword of bankruptcy hanging over the heads of perfectly competent practitioners. Pressure is bound to grow for some form of risk-sharing, for example pooling the uplift in fees so that it is distributed equally amongst members of chambers, to compensate individuals for lost fees.
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