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Contingency Fees in Europe
Contingency fees have long been an integral part of American law firms and have helped drive mass tort and class action litigation forward in the United States. When it comes to payment, it has proven to be an excellent marketing tool to use in attracting new clients. Accepting payments only if you win your client’s case allows people more affordable options when trying to file a lawsuit. However, in Europe the rules for contingency fees differ greatly from American laws.
In the UK for example, “Conditional Fees” are accepted, however they are governed by a different set of rules. A CFA (Contingent Fee Agreement) allows the solicitor to be paid only when they win the case, however if the case is won the solicitor will receive their prevailing hourly wage plus a raise – also known as a fee success. This fee can be as high as 100% of the normal hourly fee, which will depend on the complexity of the case and the risk involved.
On 29 March this year, Justice Secretary Kenneth Clarke announced that he intended to add amendments to contingent fee arrangements on the grounds that the costs of civil litigation had increased significantly (140 times higher in defamation cases) and so had the number of advertisements. for an ambulance and claim farmers. Also, it was feared that the percentage that the solicitors were charging as a success fee was being charged without any regard to how much money the claimant had actually won, which could significantly reduce the amount that would be the claimant would actually receive it if there was a win.
Other European countries do not allow these types of fee arrangements to be made…at least in principle. According to the 2004 book “Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States,” written by Herbert Kritzer, that is about to change for many European countries. At this time; Australia, Brazil, Canada, Dominican Republic, France, Greece, Ireland, Japan, New Zealand, Lithuania and Belgium use contingency fees as a payment option for their clients. In fact, German and Spanish courts have ruled that banning contingency fees is unconstitutional. This could mean that there could be a significant increase in mass litigation and class action in Europe.
So far, the commercialization of litigation finance is still a new concept in Europe. It is likely that the idea of law firms paying all the legal costs and accepting the associated risks if the case is lost, does not sit well with European regulators. This approach can be particularly costly for the companies involved in mass torts and Class actions. Although it has been argued that although litigants have the ability to opt out of a class action suit, finding new ways to fund these litigations is likely to significantly change the overall European liability landscape.
Although many countries have fully embraced the American contingency fee agreements, with their own addendums added – it can be argued by regulators that the use of contingency fees has significantly increased the number of liability lawsuits, causing for many court systems to become overwhelmed with legal filings. . Either way, it should be interesting to see how the European regulators will prevent various law firms from offering contingency fee agreements to potential legal services clients through backdoor channels.
As I have said before, although contingent fees may in principle be banned in many European countries – preventing litigants from advertising such practices commercially – there is great potential for money to be made in allowing more affordable ways for potential clients to fund their lawsuits. This fact alone is likely to make litigants push regulators harder to allow litigants to incorporate contingency fee agreements into a commercially viable payment option.
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