An American Future? Contingency Fees, Claims Explosions and Evidence from Employment Tribunals

Abstract

This article looks empirically at the notion of ‘American-style’ problems with contingency fees: in particular, the purported link between contingency fees and claims explosions. It does so in the light of renewed interest in contingency fees as a vehicle for access to justice and the resolution of costs problems in the civil justice system prompted by Jackson LJ and others. The article sheds light on the considerable debate about the (de)merits of contingency fees in one of the main – and most controversial – contexts where they are permitted: employment tribunals. The evidence casts doubt on the claim that contingency fees, coupled with US-style costs rules, lead inexorably to an explosion in litigation. The article also examines the significant inequalities in access to justice experienced by claimants and considers how far contingency fees address those concerns, suggesting limits to Kritzer's portfolio theory in relation to employment cases in England and Wales.