No-win-no-charge arrangements improving access to civil justice

No-win-no-charge arrangements improving access to civil justice

22 November 2021 By Naomi Neilson
Dr Michael Duffy

Although the “evils of cost, delay and complexity” have remained consistent barriers for the ordinary Australian to access justice, new research has indicated that new and inventive fee arrangements may improve how often civil matters are pursued.

A Monash University-led study published in the Adelaide Law Review found that while contemporary Australia still limits access to justice to either the very rich who can afford representation or the very poor who are provided legal aid, the “ordinary Australian” has benefited from inventive fee arrangements in certain legal matters.

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The single largest factor contributing to the perceived increase in access to civil justice was the introduction of a “no-win-no-charge” arrangement. Based on a survey of almost 600 Australians, Monash found that 59 per cent agreed that the introduction of such fee arrangements had improved their access to civil justice.   

The study, which examined how civil justice has improved over the past 20 years, also found that perceptions of an overall increase in access to justice were found to be stronger from those in inner urban areas and less so in regional areas.

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“Access to legal advice, representation and, where necessary, court action, are fundamental in protecting citizens’ rights,” Monash Business School senior lecturer Dr Michael Duffy said. “The findings of the study are welcome in indicating Australians are supported by the justice system, however we should not be complacent – there are always challenges in maintaining access to protecting rights.”

The study, which was partially funded by Maurice Blackburn and conducted prior to the COVID-19 pandemic, reported that the most common legal problems of the last 20 years included employment law, family law, money and debt problems, and personal injury. More “high impact” legal problems included defamation and libel, which Dr Duffy said could be due to the rise of social media platforms.

“The findings identified that the legal problem with the second highest impact on lives was reported as defamation or verbal slander, where allegations are made affecting someone’s good reputation,” Dr Duffy said. “One aspect of this seems to be the popularity of social media platforms as well as online forums and review platforms.”

Dr Duffy added that while the study was conducted prior to the pandemic, it was safe to assume that many of these common areas increased over the last two years.

“During 2020, there was a rise in the class actions taken out against governments in relation to lockdowns and the number of people seeking legal advice in relation to employment law as a result of unfair dismissals also increased. Family law problems were heightened due to the pressures on relationships during lockdowns and small businesses turned to legal advice when experiencing cash flow and debt issues.

“There’s a correlation between the most common legal problems experienced by Australians over the past 20 years and how the recent pandemic has impacted our lives and subsequently our need for legal advice in certain areas,” Dr Duffy said.   

No-win-no-charge arrangements improving access to civil justice
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