The legal community, which has studied the idea of conditional fees over the past decade, yesterday said the arrangement could both harm and benefit litigation and justice in Hong Kong. Leaders of both branches of the profession - the Bar Association and the Law Society - said members would make submissions on the Law Reform Commission consultation paper, which recommends the ban be lifted. The paper favours increasing the financial eligibility requirement for legal aid and for the Supplementary Legal Aid Scheme, but also says conditional fees would allow middle-income litigants better access to justice. Law Society president Peter Lo Chi-lik said that according to the traditional argument against conditional fees, giving lawyers a bigger stake in a case's outcome creates temptation to 'bend the rules'. He also said while such an arrangement may enhance access to justice for those who wish to sue, it may also inadvertently encourage nuisance lawsuits. 'It will address certain imbalances but whether it will go too far in the other direction is hard to say,' he said. 'It makes it easier to sue, but also makes it easier to get sued. Justice is all about balancing principles and value judgments and that is always very difficult.' The paper recommends that the claimant pay all the lawyer fees and whatever 'success fees' were agreed upon at the outset if he wins the case. The burden should not fall on the defendant to pay more than the damages ordered by the court. Subcommittee head Edward Chen Kwan-yiu and member Paul Shieh agreed, saying the idea may increase litigation, but the reform commission would put in place safeguards to prevent nuisance claims. If it led to fewer unrepresented litigants in court, it would also save court time and costs, they said. 'It will give more ways for the middle class to access the judicial system,' Professor Chen said. Mr Lo said it would enable more people to sue, but was doubtful whether that qualified as 'greater access to justice'. He said solicitors were split on the contentious issue, but agreed that the legal aid system needed improvement. Acting Bar Association chairman Andrew Bruce said barristers would welcome extending the Supplementary Legal Aid Scheme, something for which they have campaigned 'for a long time'.
