On 21 November 2016, the Royal Gazette reported on the Bermuda Bar Council’s efforts to introduce Conditional Fee Agreement legislation in Bermuda, which have thus far been met with a wall of silence from the Bermuda Government, and the Attorney-General in particular.
Chief Justice Kawaley of the Supreme Court of Bermuda has repeatedly suggested, writing and speaking extra-judicially, that CFAs (in some shape or form) should be introduced in Bermuda, in circumstances where the current Rules of Professional Conduct prohibit lawyers from acting on a ‘no win, no fee’ basis except in uncontested debt collection matters.
The economic reality at present is that the Legal Aid Fund is available to a very small minority of litigants for civil disputes, and that, for the vast majority of individuals, the costs, and adverse costs risks, of civil litigation in Bermuda are completely unaffordable, or only affordable at disproportionate cost, risk, and expense.
Although many Bermuda lawyers, in practice, offer subsidies for their clients in some shape or form (whether acting pro bono, partially pro bono, or on a discounted/deferred/waived payment basis in cases of financial hardship), there are many potential litigants that are quite simply unable to access legal representation on any such basis, especially where the circumstances of their case are complicated and require investigation.
Although some commentators have hinted at an argument that the Bermuda Bar Council’s CFA initiative is being driven by lawyers out of self-interest, and that an alternative approach might be for Bermuda lawyers simply to lower their legal fees in appropriate cases, it is clear that an appropriate solution, consistent with the Constitutional right of access to the Court, would be the introduction of ‘CFAs’ in some shape or form, for appropriate cases, and on an appropriately regulated basis.
Cynics might note that the Bermuda Government has found itself the target of an increasing number of civil, judicial review, and constitutional lawsuits, and that it might, as a result, be concerned as to its potential exposures in the event that access to justice is opened up yet further, by the introduction of CFAs.
But the Government’s basic exposure exists in any event, in a jurisdiction that is the subject of a written Constitution and the rule of law: and it can be argued that the Bermuda Government’s potential exposure to the allegation that it is depriving its citizens and residents of their rights to access to justice should be of even greater concern. If Government does not act by way of legislation, the Courts might be compelled to take matters into their own hands.