[This paper is also available in rich text format-- nicer for printing out
and distributing off-line. Email Robin if you'd like a copy:
[EMAIL PROTECTED]]
-----
Costs Awards and Contingency Fees: a brief analysis of the problems for
people with disabilities
Robin Banks
Co-ordinator, NSW Disability Discrimination Legal Centre
March 1999
A key element of the proposed amendments to the human rights jurisdiction
in Australia is the relocation of hearings of anti-discrimination cases
into the Federal Court. This element has met with significant resistance
from the community sector. While most participants in this jurisdiction
recognise the urgent need to remedy the non-enforcement dilemma created by
the decision of the High Court in Brandy v HREOC, many advocates are
concerned that hearing these cases in the Federal Court gives rise to
another set of problems of equally serious concern.
For people with disabilities and their advocates two key concerns have been
highlighted:
inaccessible courts: this inaccessibility is not just problems about
physical access, it extends to the lack of awareness of the judiciary of
the rights and life experiences of people with disabilities. In the same
way that feminist legal theory has criticised the legal system for failing
to understand the experience of women, our judiciary is not in a position
to understand the experience of people with disabilities and to reflect
that experience in its analysis of law and its application to particular
situations.
costs of litigation: the current jurisdiction, within HREOC, is one in
which costs are not awarded in any case, nor are there any costs payable to
bring a case before the Commission. The Federal Court follows the usual
rule in the Australian legal system of 'costs follow the event'; this means
that the losing party pays the legal costs of the winning party. In
addition, there are fees payable before a case can be brought before the
court.
All of these factors will severely limit the opportunities for people with
disabilities to pursue their rights under the federal Disability
Discrimination Act. It is the view of the author of this paper that these
factors will have a more significant deterrent effect for people with
disabilities than any other groups protected by federal anti-discrimination
laws. This view has been reached after closely considering the nature of
federal anti-discrimination jurisprudence.
This brief paper looks only at the difficulties that arise from the 'costs
follow the event' rule. It has been suggested that this rule provides a
benefit to litigants in this area as it will encourage private solicitors
to undertake litigation for complainants on a contingency or speculative
basis. While there may be some merit in this argument, it fails for people
with disabilities on a number of counts.
Firstly, most states and territories have very specific rules regarding the
use of contingency fee arrangements between solicitors and clients. This
is referred to in some detail in the recent Access to Justice report. Key
paragraphs from that report are included in the appendix to this paper.
The restrictions on the use of contingency fees make such arrangements
significantly less attractive to solicitors. This is exacerbated by the
very low compensation awards found in the anti-discrimination jurisprudence
of Australia. Unlike personal injury actions which can achieve awards of
compensation in the millions of dollars, awards to date in
anti-discrimination cases tend to range between $5,000 and $50,000. This
means that even if percentage fee arrangements were to be introduced, the
likely fees achievable would not be sufficient to attract solicitors into
litigation where they only get paid if they win.
Second, such arrangements do not overcome the far more compelling problem
for many plaintiffs/complainants, the risk of losing and being ordered to
pay the respondent's legal costs. This serious barrier was recognised in
the Access to Justice report, which noted at paragraph 6.6 that:
They will only be of benefit to plaintiffs who would have been otherwise
unable to take legal action-whether on a speculative basis, with legal aid
or with their own fund-and who are prepared to risk having to pay their
opponent's costs if unsuccessful.
There is little evidence available that suggests there are large numbers of
people wanting to proceed to a hearing who are unable to do so due to lack
of legal representation. The existence of specialist legal centres,
funding from legal aid and increasing numbers of pro bono schemes mean that
people with arguable cases could be legally represented. It is the
experience of the author of this paper that it is the application of the
'costs follow the event' rule in the Federal Court that causes many people
to avoid their cases going to hearing. Complainants are afraid that once
they get a decision in their favour in HREOC, many respondents will appeal
the decision, forcing them into the costs jurisdiction of the Federal Court.
This means that only a complainant who is absolutely certain of winning in
the Federal Court or who has no assets is willing to take the risk of a
hearing.
Third, unlike race and sex discrimination cases there is a dearth of
decisions in the disability discrimination area, and such decisions as do
exist are of limited value in assessing the risks of litigation. This
arises from several factors. Firstly, disability discrimination law has
only been in operation since 1 March 1993 compared to race discrimination
law since 1975 and sex discrimination law since 1984. Second, there were
significant delays at HREOC in dealing with cases in the first few years of
the DDA's operation. There are still cases in the process from 1994.
Third, the diversity of characteristics that come within the definition of
disability mean that a favourable decision for a person with a particular
disability may have extremely limited application for someone with a
different disability. Finally, the defence of unjustifiable hardship,
which arises uniquely in the DDA, adds a further element of uncertainty
which can include consideration of economic, personal and other factors.
A further factor that requires much more detailed analysis that can be
given in this paper relates to community attitudes to people with
disabilities. We still live in a society that overwhelmingly has biased
attitudes towards people with disabilities. These attitudes will (and are)
inevitably be reflected in our judiciary and legal profession. This adds a
further element of uncertainty and makes almost any case of disability
discrimination a test case.
These factors peculiar to disability discrimination cases make it extremely
difficult to assess the risks of losing and facing an adverse costs order.
In conclusion, while appropriate steps must be taken to remedy the lack of
enforcement of decisions in the federal anti-discrimination jurisdiction,
they must not be steps that create greater barriers for people with
disabilities. Unless the jurisdiction is a non-costs jurisdiction, it is
extremely difficult to imagine that well-advised complainants will proceed
with legal action.
-----
Appendix
Access to Justice: An Action Plan
6.3 A contingency fee arrangement does not relieve the plaintiff from the
risk of having to pay the costs of the other party, should the claim be
unsuccessful. Nor does the arrangement necessarily relieve the plaintiff
from liability for disbursements (such as court fees), although the terms
of the arrangement may provide for the lawyer to bear the disbursements
unless the action is successful.
6.4 Contingency fee arrangements can take a number of forms:
o speculative fees: in the event of a win, the lawyer charges the usual fee
only;
o uplift fees: in the event of a win, the lawyer charges the usual fee plus
an agreed flat amount or percentage uplift of the usual fee; and
o percentage fees: in the event of a win, the lawyer charges an amount
calculated as a percentage (which might be fixed or sliding) of the amount
won.
Although the position in Australia is in a state of flux, in most
jurisdictions lawyers are pemitted to charge clients on a speculative
basis, but not on a fee uplift or percentage basis...
6.6 It is important to understand the limitations of contingency fees as a
means of enhancing access to justice for plaintiffs... They will only be of
benefit to plaintiffs who would have been otherwise unable to take legal
action-whether on a speculative basis, with legal aid or with their own
fund-and who are prepared to risk having to pay their opponent's costs if
unsuccessful.
Leftlink - Australia's Broad Left Mailing List
mailto:[EMAIL PROTECTED]
http://www.alexia.net.au/~www/mhutton/index.html
Sponsored by Melbourne's New International Bookshop
Subscribe: mailto:[EMAIL PROTECTED]?Body=subscribe%20leftlink
Unsubscribe: mailto:[EMAIL PROTECTED]?Body=unsubscribe%20leftlink
