Equality before the law depends on access to it
There is a well-worn saying that anyone who represents themselves in court has a fool for a client. There is some truth in this. Most unrepresented litigants would benefit from legal advice and representation.
In Hong Kong, however, many feel they have little option but to go it alone. More worryingly, there are others who could bring actions in the courts but choose not to do so. The reason for this is simple - they cannot afford the legal fees. The problem is one that hits the middle class hard. Many members of the middle class earn too much to qualify for legal aid, but not enough to afford the costs of hiring a private lawyer. Representing themselves gives them access to justice of a kind, but it is not equal.
Proposals to improve their access to justice are therefore welcome. The Law Reform Commission has this week suggested a form of 'no win, no fee' arrangement for civil cases that would enable more people to hire a lawyer. It is properly called a conditional fee arrangement. An agreement can be made with the client that the lawyer will be paid either nothing or a reduced fee if the case is unsuccessful, and either a regular fee or a fee plus a percentage if the case is won.
If they lose, the other side's legal fees will still have to be paid in most cases. The subcommittee gives options to cover that.
The proposals have been issued as a consultation paper. Alarming figures from our courts on the number of unrepresented litigants in civil cases show that it is worthy of thoughtful, positive comment from a wide cross-section of society.
Conditional fee arrangements should be distinguished from the American system of contingency fees under which lawyers are paid only if their clients win. The US system has created cost-free litigation and turned America into a society in which people have little hesitation in bringing the most frivolous claims. The conditional fee system is similar, but it should not encourage frivolous claims as long as the loser still has to pay the other side's costs. That is the experience in Britain since 1995. There, conditional fees have enabled people of average means to take legitimate claims to court without being blocked by the potential cost.
Edward Chen Kwan-yiu, head of the Law Reform Commission's subcommittee dealing with the issue, says litigants appear for themselves in 42 per cent of civil cases in the High Court. There are no figures for people who, finding lawyers too expensive, do not even consider recourse to the courts. Many have legitimate claims. Some are driven into the arms of 'recovery agents', who help them with claims without the benefit of professional experience or safeguards of lawyers' codes of conduct and sanctions.
There are concerns to be addressed in a conditional fee system that are certain to be raised by members of the legal profession. One is that with a financial stake in the outcome of a case, lawyers may be tempted to resort to unethical means. There would have to be safeguards against this. Another is that nuisance claims may be encouraged. Retiring Judge Fergal Sweeney has pointed out that a conditional fee system actually filters out such claims. Lawyers who risk getting nothing at the end of the day if they lose would only take on cases with a reasonable chance of success.
The British experience revealed problems with escalating premiums for 'after the event' insurance designed to cover claimants against the legal costs of losing their case. Anticipating affordability problems with similar insurance here, the subcommittee recommends courts have discretionary power to require security for the other side's costs, and a contingency legal-aid fund financed by a share of compensation in successful cases.
The overriding consideration must be to make our courts more accessible. Hong Kong rightly boasts that the rule of law sets it apart in Asia as a place to do business. There is good reason to be proud of our legal system - and to make sure that everyone has equal access to it.
