A legal adviser who withdraws from a success fee agreement should not be barred from claiming a fee if the recipient of the service subsequently enters into an agreement with another provider and is ultimately successful, according to the Faculty of Advocates.

Faculty was responding to a Scottish Government consultation on the regulation of success fee arrangements under part 1 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. Under such arrangements a fee is payable only if the client's action is successful, but there can be an uplift on what would otherwise be charged.

The paper suggested that it would be inappropriate to allow a provider who withdraws from their agreement to benefit financially if the client is ultimately successful after entering a similar agreement with another provider. Faculty however responds that "Solicitors and counsel must be able to part company with their clients for good reason. Indeed, their professional obligations, including as officers of the court, may require them to do so in certain circumstances. Depriving the provider of their fee entitlement in those circumstances could induce them to act unreasonably (and potentially even unprofessionally) and penalise agents and counsel who do their job properly.

"An ordinary example of where such a tension would arise would be where a client refuses to take advice on a tender, and agents and counsel responsibly consider that they should withdraw from acting." 

On other questions in the paper, Faculty states that it is "generally content" with the recommended success fee caps, while restating its concern that there should be no financial incentive to choose a lump sum rather than a periodical payment; that speculative fee arrangements should remain available in family law proceedings concerning financial provision on divorce, though it would be inappropriate for the extent of the fee to be contingent on the size of the capital sum achieved; that the existing legal aid regulations make sufficient provision for the exclusion of legal aid when a success fee agreement is in prospect or in place; and that it should be made clear to litigants that they can surrender a legal aid certificate and continue under another form of funding during an action.

Click here to view the response.