Supreme Court allows conditional fee application in NI appeal

On 21 July 2016 the Supreme Court allowed an application by DPG client Denise Brewster to instruct lawyers on a conditional fee basis in her appeal.

Mrs Brewster lives in Northern Ireland. She is appealing to the Supreme Court a decision of the Court of Appeal in Northern Ireland relating to discriminatory public sector pension rules.

The use of conditional fee agreements in England and Wales is common place. Under these agreements, full fees are payable by the client only if the case succeeds, in which case the fees can usually be recovered from the opponent. Whereas if the claim fails, the client pays no fee or a reduced fee depending on the terms of the agreement. Such agreements are generally considered to enhance access to justice, enabling those of modest means but who are not entitled to legal aid to secure legal representation in civil court proceedings.

However, Mrs Brewster’s opponents – supported by the Attorney General for Northern Ireland – contended that Mrs Brewster should not be able to instruct DPG on a conditional fee basis. This was on the basis that: (i) lawyers in Northern Ireland are not permitted by their professional conduct rules to accept instructions on a conditional fee basis and Mrs Brewster should not be able to circumvent this by instructing lawyers in London; (ii) the High Court in Northern Ireland has decided that conditional fee agreements are not enforceable in that jurisdiction and that when determining appeals from Northern Ireland the Supreme Court is required to apply the law of Northern Ireland in relation to any funding issues arising in the appeal.

Those arguments were rejected by a three judge panel of the Supreme Court which has determined that Mrs Brewster may instruct solicitors and barristers based in London on a conditional fee basis for the hearing of her appeal in November 2016. This will ensure that Mrs Brewster can continue with her case, whereas otherwise she would have had to abandon it.

Mrs Brewster was represented on this application by Gareth Mitchell of DPG and by Nick Bacon QC and Benjamin Fowler both of 4 New Square. For more information about the important issues raised by Mrs Brewster’s substantive appeal see her crowdfunding page.

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