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Contingency Fees in Europe
Contingency fees have long been a staple of American law firms and have helped to delay mass litigation and class actions in the United States. In terms of payment, it has proven itself to be a great marketing tool to use in attracting new customers. Accepting payments only if you win your client’s case allows people more affordable options when looking to file a lawsuit. However, in Europe the rules on 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 attorney to be paid only when he/she wins the case, however if the case is won, the attorney will receive their hourly rate plus a raise – also called a success fee. This fee can be up to 100% of the regular hourly rate, 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 was planning to introduce reforms to conditional fee agreements on the basis that the costs of civil litigation had risen significantly (140 times higher in defamation defense cases). and so does the number of ambulance chase ads and claim farmers. There were also fears that the percentage the lawyers charged as a success fee was charged without regard to how much money the claimant actually won, which could drastically reduce the amount the claimant would receive in the event of victory.
Other European countries do not allow these types of rate adjustments to take place…at least in principle. According to the 2004 book Risks, Reputation and Rewards: The Legal Practice of Contingency Fees in the United States, written by Herbert Kritzer, this is about to change for many European countries. For now; Australia, Brazil, Canada, Dominican Republic, France, Greece, Ireland, Japan, New Zealand, Lithuania and Belgium are using contingency fees as a payment option for their customers. In fact, German and Spanish courts have ruled that the ban on contingency fees is unconstitutional. This could mean that there could be a significant increase in mass litigation and class actions in Europe.
So far, the commercialization of litigation funding is still a new concept in Europe. It is likely that the idea of law firms paying all the legal costs and accepting the risks involved if the case is lost does not sit well with European regulators. This method can be especially costly for firms that are involved in mass torts and class actions. While it has been argued that, although litigants have the ability to opt out of a class action, finding new ways to fund these litigations is likely to drastically change the overall European liability landscape.
Although many countries have fully embraced America’s contingency fee arrangements—with their added perks—it can be argued by regulators that the use of contingency fees has significantly increased the number of liability lawsuits, leaving many court systems overwhelmed. with legal files. . Either way, it should be interesting to see how European regulators will prevent various law firms from offering potential clients legal services with back-channel contingency fee arrangements.
As I said before, although contingent fees could in principle be banned in many European countries – preventing litigants from commercially advertising such practices – there is huge potential for money to be allowed to potential clients. more affordable ways to fund their lawsuits. This fact alone is likely to cause litigants to push regulators harder to allow litigants to incorporate contingent fee agreements into a commercially viable payment option.
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