Following consultation, the above Regulations have now been published and are currently the subject of further consultation with the appropriate consultees. It is the Government's proposal to lay the Regulations as early as possible in the new Parliamentary term with a view to implementation in April 2010.
The draft Regulations and covering letter are available here.
In summary, the proposed Regulations:
- Render unenforceable any DBA (damage based agreement, also known as contingency fee agreement) that does not comply with certain specific requirements including the costs and expenses payable and the reasons for setting the fee at the agreed level;
- Before the agreement is signed, the client must be informed of certain specific matters including other methods of available funding and the circumstances in which the client may seek a review of the costs and expenses incurred;
- Impose a maximum costs percentage of 25% of damages;
- Allow a Claimant to terminate the DBA at any time leaving their liability to their representative limited to the reasonable costs actually incurred (at an hourly rate) for work undertaken to the point of termination.
You are at liberty to make any representations to the Ministry of Justice (privatefundingbranch@justice.gsi.gov.uk) and/or via any of the named Consultees who include the ELA and Law Society. Any comments are to be received for submission to the MoJ by Friday 8 January 2010.
All the relevant consultation papers are available at
http://www.justice.gov.uk/consultations/regulating-damges-based-agreements.htm including a list of all the Consultees.
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