This week, speaking at a Law Society Commercial Litigation Conference, Professor Rachel Mulheron spoke on the topic of damages-based agreements (DBAs) which were introduced through a set of regulations in 2013 as part of the Jackson reforms. Since their introduction they have seen little take up by the legal profession.[i]
There have been many complaints regarding the regulations with many seeing them as poorly drafted and unworkable. The inability to provide hybrid DBAs was also criticised by practitioners, especially as hybrid funding measures were available for CFAs.
Following this criticism, the Civil Justice Council (CJC) were asked to recommend improvements to the 2013 regulations. As such, they produced a report in September 2015 which set out a blueprint of 45 recommendations designed to kick-start the use of DBAs.
Recommendations included:
- Technical amendments to existing regulations to make them clearer and therefore more attractive;
- Increasing some of the caps on payments for cases;
- Allowing lawyers and clients to agree a ‘trigger point’ at which a DBA becomes payable and the circumstances under which it can be terminated.
Professor Mulheron reminded those at the conference that this report had been commenced on the request of the government and said it was ‘a great pity’ that the report had not been taken forward. It was noted that the recent government consultation ‘Transforming Justice’, did not make reference to DBAs at all.
We reported on the CJC’s recommendations for reforming DBAs in edition 109 BC Disease News here.
[i] Rachel Rothwell, ‘Jackson Urges “Culture Change” On “Profitable” Disclosure’ (The Law Society Gazette 11 October 2016)< http://www.lawgazette.co.uk/news/jackson-urges-culture-change-on-profitable-disclosure/5058232.article> accessed 12 October 2016.