The American Bar Association Young Lawyers Division 2014 Spring Conference Pittsburgh, PA

Transcription

1 The American Bar Association Young Lawyers Division 2014 Spring Conference Pittsburgh, PA International Litigation: Access to Justice in Other Jurisdictions (CLE Lunch) Renaissance Pittsburgh Jimmy Stewart, 2 nd Floor Friday, May 16, :40 PM 2:00 PM

2 + International Litigation: Access to Justice in Other Jurisdictions Moderator: Dionna M. Lewis, YLD Scholar, Washington DC SPEAKERS: Keith Etherington Slater & Gordon Lawyers, Manchester, England Josselin J. Lucas Union des Jeunes Avocats (U.J.A.) de Paris, Washington DC Paul-Matthieu Grondin Young Bar Association of Montreal, Montreal, Canada

3 + Conference hash tag: #yldspring Funding litigation in England (& Wales) Keith Etherington Law Society Council Member (Civil Litigation) Solicitor and Civil Commercial Mediator Deputy District Judge (civil)

4 + A comparison of funding litigation around the world Overview of jurisdictions Contingency fees Hourly rates Loser pays? Civil and criminal cases Webpage: Conference #tag: #yldspring

5 + Only England and Wales not all UK Webpage: Conference #tag: #yldspring

6 + And another thing Webpage: Conference #tag: #yldspring

7 The basis for legal costs + THE INDEMNITY PRINCIPLE In litigation, the loser pays all parties costs (usually) BUT You can only charge the loser what your client would have paid So if you are working pro bono then you can never recover costs from loser Webpage: Conference #tag: #yldspring

8 + Contingency fees forbidden English law doesn t like the idea of them. Perceived conflict Except in a few discrete areas of law deemed noncontentious But hybrids developed Damages based agreements Conditional fee agreements (no win, no fee) Webpage: Conference #tag: #yldspring

9 + Damages based agreements These allow for fees to be charged on a percentage of damages recovered But % is capped 50% for commercial claims,35% for employment claims,25% for personal injury claims ALL inclusive of tax (20%) AND indemnity principle applies Solicitor must advise client on most appropriate funding method Very low usage rates Webpage: Conference #tag: #yldspring

10 + Examples of a DBA at end of case Damages 50,000 Costs on an hourly rate including tax 40,000 DBA restricts costs to 25,000 Loser only has to pay 25,000 Client pays the balance Client ends up with 35,000 Case settles at an early stage; costs on hourly rate only 40,000 Damages 1,000,000 DBA restricts costs to 500,000 Loser pays 40,000 Client pays the balance 460,000 Had this been a standard hourly rate retainer client would have paid little or nothing Webpage: Conference #tag: #yldspring

11 + Conditional fee agreements (no win, no fee) These used to be very lucrative Before April 2013 allowed the solicitor to increase fees by up to 100% Increase paid by loser! Created a new industry of claims managers Claimant took out insurance to cover risk of losing Loser paid the premium Webpage: Conference #tag: #yldspring

12 + New conditional fee agreements Uplift no longer payable by loser Client pays it instead Still lucrative but client has an interest in % Qualified one way costs shifting (QOCS) no need for high insurance premiums in personal injury cases QOCS may be extended to other cases Webpage: Conference #tag: #yldspring

13 + Guideline hourly rates A: Solicitors, 8+ years qualified experience. B: Solicitors or Legal Executives over 4 years qualified experience. C: Other qualified Solicitors or Legal Executives. D: Trainee solicitors, paralegals or equivalent In Manchester: A 217 ($364) B 192 C 161 D 118 Whereas in central London: A 409 ($687) B 296 C 226 D 138 Webpage: Conference #tag: #yldspring

14 + Profitable? Opportunities for profit are good New hybrids of CFAs, DBAs and private funding being developed for stages of the case The uplift, even though payable by client, still can produce significant fees But costs budgeting now managed by the court Webpage: Conference #tag: #yldspring

15 + Alternative dispute resolution The civil court rules, by rule 1, provides for the overriding objective which is: 1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost The courts are seen as a last resort and not a first resort Mediation can be ordered by the court part way through the case Webpage: Conference #tag: #yldspring

16 + Court fees Recent increase. Fees quite high On a $500,000 case: To issue the claim: 1,920 Applications during the claim: 155 (each) Trial fee: 1,090 Total: 3,165 ($5,325) Loser pays Webpage: Conference #tag: #yldspring

17 + Criminal cases Indemnity principle applies here too Cases funded privately Or with public funding (legal aid) If person found to be not guilty, state pays innocent person s legal fees Webpage: Conference #tag: #yldspring

18 + Criminal Legal Aid There is a legal aid system that allows any person being investigated or prosecuted for a serious criminal offence to receive: Free advice at the police station A solicitor and barrister of their own choice (subject to them agreeing fixed fee rates or reduced hourly rates) Webpage: Conference #tag: #yldspring

19 + Cuts to legal aid Webpage: Conference #tag: #yldspring

20 ABA Spring Conference- Young Lawyers Division Pittsburgh, PA, May 16, 2014 CLE Luncheon Program International Litigation: Access to Justice in Other Jurisdictions «What About France?» Josselin J. Lucas Member of the Paris and Brussels Bars Co-Head of the International Committee Union des Jeunes Avocats de Paris 19

21 International Litigation: Access to Justice in Other Jurisdictions 1. Attorney Fees in Civil Claims What is the basis of right to charge the client? What is the potential (if any) for recovering costs from the losing party? Are contingency arrangements permitted? If so, are there any limitations? If they are not permitted, what is the alternative? If you work on an hourly rate basis, how is the hourly rate fixed? What opportunities are there for profit? Is there any requirement to try to mediate, or other types of alternative dispute resolution? 2. Fees for Accessing the Courts Are there fees to pay for issuing proceedings and taking a case to trial? If so, what would be the fees on, say, a US$500,000 case? Who pays them? Are they recoverable from the loser? 3. Attorney Fees in Criminal Cases Is the system the same as civil? Are attorney fees capped? Does the State pay if the accused is not guilty? Is there any public funding for people accused? Are there limitations to that? 20

22 1. Attorney Fees in Civil Claims 1. What is the basis of right to charge the client? 2. What is the potential (if any) for recovering costs from the losing party? 3. Are contingency arrangements permitted? If so, are there any limitations? If they are not permitted, what is the alternative? 4. If you work on an hourly rate basis, how is the hourly rate fixed? 5. What opportunities are there for profit? 6. Is there any requirement to try to mediate, or other types of alternative dispute resolution? 21

23 1. Attorney Fees in Civil Claims What is the basis of right to charge the client? Agreement between attorneys and clients on attorney fees ( honoraires ) Law n of 31 December 1971 Information given by attorneys on the way they intend to charge clients Possibility to obtain an advance from clients to be deducted from attorney fees What is the potential (if any) for recovering costs from the losing party? Distinction between court costs («dépens») and attorney fees Examples Are contingency arrangements permitted? If so, are there any limitations? If they are not permitted, what is the alternative? Prohibition of the attorney fees based exclusively on success ( no win - no fee ) under French law Possibility of a success fee: conditions If you work on an hourly rate basis, how is the hourly rate fixed? Agreement between attorneys and clients on attorney fees No general obligation to cap attorney fees Exceptions What opportunities are there for profit? No maximum attorney fees, nor fixed attorney fees in France Is there any requirement to try to mediate, or other types of alternative dispute resolution? No Special request to be filed to the President of the local bar association 22

24 2. Fees For Accessing the Courts 1. Are there fees to pay for issuing proceedings and taking a case to trial? 2. If so, what would the fees be on, say, a US$500,000 case? 3. Who pays them? Are they recoverable from the loser? 23

25 2. Fees For Accessing the Courts Are there fees to pay for issuing proceedings and taking a case to trial? No significant administrative fees in comparison with other jurisdictions As for civil claims: very few taxes to be paid in order to bring an action to Courts As for criminal cases: no tax to be paid in order for the victim to complain If so, what would the fees be on, say, a US$500,000 case? In any cases, less than US$1,000 Who pays them? Are they recoverable from the loser? As for civil claims: administrative fees paid by the plaintiff As a general rule, determination by the Court whether the defendant will have to reimburse the plaintiff for these administrative fees 24

26 3. Attorney Fees in Criminal Cases 1. Is the system the same as civil? 2. Are attorney fees capped? Does the State pay if the accused is not guilty? 3. Is there any public funding for people accused? Are they any limitations to that? 25

27 3. Attorney Fees in Criminal Cases Is the system the same as civil? Yes, as for attorney fees Negotiation between clients and attorneys on attorney fees Are attorney fees capped? Does the State pay if the accused is not guilty? No, as a general rule (except for Legal Aid System) As for guilty accused: determination by the Court of the amount to be paid by the accused to the victim as for all the fees which have not been paid by the State As for not guilty accused: possibility of an indemnification to be paid by the State to the accused for all the fees which have not been paid by the State. The indemnification is capped to the amount which would have been paid by the State to an attorney within the framework of the Legal Aid System If the dismissed action was brought by an alleged victim, the Court can impose the alleged victim to pay for this indemnification and to pay damages to the accused Is there any public funding for people accused? Are there any limitations to that? Yes. The French Legal Aid System ( Aide Juridictionnelle ) Admission Criteria Scope Full or Partial Legal Aid? Capped French Legal Aid: Examples 26

28 Josselin J. Lucas Member of the Paris and Brussels Bars Co-Head of the International Committee Union des Jeunes Avocats de Paris 27

29 ACCESS TO JUSTICE IN THE PROVINCE OF QUÉBEC ABA-YLD Spring Conference, Pittsburgh May 16, 2014 By Paul-Matthieu Grondin

30 Paul-Matthieu Grondin Current Vice-president and President-elect of the Young Bar Association of Montreal 4500 members strong; Civil litigator in Montreal, Quebec, Canada; Trained in civil law (LL.B. Sherbrooke 05) and common law (Queen s University 07); Started own firm 6 years ago: Grondin Savarese; Friends call me Paulie.

31 What is the basis of right to charge the client? Code of ethics of advocates: advocate must charge and accept reasonable fees Following factors: - Time devoted to matter - Experience - Difficulty of the question involved - Importance of the matter - Result obtained

32 What is the potential (if any) for recovering costs from the losing party? Difference between judicial and extrajudicial fees; Civil law based on Napoleonic Code (Code civil du Québec); Judge decides who pays the judicial fees normally the losing party; Each party pays its own extrajudicial fees, except for frivolous / abusive / no reasonable chance of success motions.

33 Are contingency arrangements permitted? If so, are there any limitations? If they are not permitted, what is the alternative? Contingency arrangements permitted; Quebec Bar recommends that fees do not exceed 15 to 30% of recovered amount; Pay attention to drafting of fee agreements.

34 If you work on an hourly rate basis, how is the hourly rate fixed? Hourly rates not fixed; May vary wildly; Only restriction is that hourly rate should be reasonable.

35 What opportunities are there for profit? No problem with profit of the Code of ethics of advocates: The advocate must avoid all methods and attitudes likely to give to his profession a profit-seeking or commercial character.

36 Is there any requirement to try to mediate or other type of alternative dispute resolution? Quebec considers itself a world-leader on alternative dispute resolution; Mandatory information session on mediation in family matters; More emphasis on mediation in new code of civil procedure; Settlement conference: available at any time, with judge serving as mediator.

37 Are there fees to pay for issuing proceedings and taking a case to trial? Yes, but minimal: Amount in dispute Natural person Legal person 0.01 to ,000 to 9, ,000 to 99, ,000 à 999, ,000,000 or more

38 If so, what would the fees be on, say, a US$500,000 case? Given current exchange rate, reasonable to say: $ for a natural person or $ for a legal person

39 Who pays them? Are they recoverable from the loser? Usually, they are recoverable from the losing party if ever the matter goes to trial. In the event of a settlement, as in many other jurisdictions, each party usually pays its own costs.

40 Attorney fees in criminal cases: Is the system the same as civil? Yes.

41 Are attorney fees capped? Does the State pay if accused not guilty? No, fees are theoretically not capped. The State does not pay if the accused is found not guilty.

42 Is there any public funding for people accused? Are there any limitations to that? Quicky fact: YBAM essentially founded legal aid system; Former YBAM president Jérôme Choquette became Minister of Justice in the 1970s; Legal aid is free, or with contribution, dependant on financial eligibility; Some legal aid lawyers are employed by the government, mandates can be given to private practice lawyer; Fixed fees.

43 THANK YOU.