Access to Justice: Why Legal Expertise Still Depends on Ability to Pay

Conditional Fee Agreements

Conditional Fee Agreements were introduced in 1990 to relieve pressure on the civil legal aid system and shift funding responsibility to the private sector. Under a CFA, solicitors are paid only if the case succeeds, with costs recoverable from the losing party. This model enhances access to justice by removing upfront fees, aligning lawyer and client interests and encouraging careful case selection. Success fees, insurance options and adaptability across case types make CFAs attractive for individuals with limited means.

However, capped success fees of up to 100 per cent raise concerns about fairness and disproportionate pay‑outs. Lawyers face financial risk in complex or lengthy cases, which can create conflicts of interest during settlement discussions. Risk aversion may lead solicitors to prioritise high‑value or high‑success‑rate claims, excluding those who would previously have qualified for legal aid. Ethical concerns rooted in historical champerty persist, and CFAs remain unsuitable for certain family law matters.

Case law reflects these tensions. Thai Trading Co validated CFA legitimacy, while Bevan Ashford exposed inconsistencies, particularly in arbitration. Some jurisdictions, such as Singapore, prohibit CFAs entirely. Domestically, Lord Justice Jackson’s 2009 review identified CFAs as a major driver of disproportionate costs, prompting 2013 reforms that shifted success fees from losing parties to winning clients. Recent cases also warn solicitors that certain settlements may forfeit conditional fees, highlighting professional vulnerability.

A potential reform would integrate CFAs with the Legal Aid Agency through a hybrid fund. The court could process damages awarded to successful claimants, with a percentage allocated to a shared legal aid pool before release to the claimant. This would support individuals excluded from CFAs and ensure solicitors receive compensation.

Alternative Dispute Resolution

ADR offers a faster and more cost‑effective alternative to litigation. With a neutral third party facilitating early settlement, ADR reduces delays, preserves judicial resources and alleviates financial and emotional strain. Government support and court‑backed financial incentives strengthen its effectiveness. Confidentiality also appeals to parties seeking privacy unavailable in public court proceedings.

Yet ADR’s voluntary nature limits its reach. Many litigants prefer the predictability of litigation, even if slower and more expensive. Except in arbitration, ADR lacks inherent legal binding force, reducing confidence in its outcomes. Critics, including Lady Hale, warn that ADR may dilute legal protections or trivialise disputes. Cases with precedent value often bypass ADR, especially when legal professionals are absent, weakening its utility. When ADR fails, parties return to court, causing further delay and exposing the deeper issue: the cost of accessing justice. Financial barriers to court hearings risk breaching human rights provisions and highlight ADR’s inability to bridge the justice gap fully.

Litigants in Person

Litigants in Person have become increasingly common following cuts to legal aid. While LiPs demonstrate resilience, they face significant disadvantages: limited legal knowledge, procedural difficulties and reduced ability to protect their interests. This imbalance undermines fairness and burdens the judicial system with inefficiencies and errors.

Support exists through organisations such as Support Through Court, McKenzie Friends and pro bono services like Citizens Advice. However, these measures are inconsistent and insufficient. Reform should focus on strengthening support mechanisms and reassessing legal aid rather than reshaping court processes.

Conclusion

CFAs offer a partial solution but carry structural weaknesses. ADR provides efficiency but lacks universal acceptance and legal certainty. LiPs highlight the consequences of reduced legal aid rather than solving them. The adversarial system itself entrenches inequality when proper representation is unaffordable.

Reform should prioritise bridging the access‑to‑justice gap through a dedicated tax‑funded scheme, government grants for financially constrained individuals and tax incentives for pro bono work. Despite the Legal Aid Agency’s efforts, current mechanisms fall short. Claimants with limited means remain disadvantaged, confirming Zuckerman’s assertion that those unable to pay for legal expertise are effectively denied justice. This reality undermines the rule of law and demands urgent structural change.