Contingency fee regulations: a means of enhancing access to justice in Zambia

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Mtaja, Joan
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Access to justice is one of the most fundamental human rights, that is or should be the cornerstone of any democratic society and any country that purports to uphold the Rule of law. There are many ways identified that help to enhance access to justice, one of which is the use of contingency fee arrangements. In Zambia, contingency fee arrangements (arrangements in which a lawyer agrees, subject to certain conditions, to be paid upon successfully winning his client's case) are prohibited by the Legal Practitioner's Act. This is a reflection of the common law prohibition on champerty. However, the prohibition means that many people who have a plausible cause of action are not able to maintain proceedings as they are not able to afford a lawyer. Thus, the vast majority of the citizens are precluded from accessing justice due to the fact they are unable to afford a lawyer. This dissertation examined contingency fee arrangements and their effect on access to justice. Essentially, it focused on ascertaining whether enabling the use of contingency fee arrangements in Zambia would enhance access to justice. The dissertation began by considering the history of contingency fee arrangements in the United States of America and England. Further, the study examined the law that prohibits contingency fees in Zambia. The impact of contingency fee arrangements on access to justice was examined through the investigation of contingency fee arrangements in three jurisdictions, namely the United States of America, England and South Africa. The study also captured the opinions of members of the public and representatives from key institutions in order to analyse public opinion regarding access to justice and contingency fees. Through mainly qualitative research methods and interviews, the study found that the majority of the people are unable to afford legal practitioner's fees as they are exorbitant. The study revealed that the public would welcome the enactment of legislation enabling contingency fees as an alternative to the normal method of remunerating legal practitioners. However, the study also found that such arrangements must be statutorily regulated and supervised to prevent abuse and unethical behaviour by members of the legal profession. It is therefore recommended that the Legal Practitioner's Act and the Legal Practitioners Rules be amended to allow for the use of contingency fees as a means of enhancing access to justice. In addition, a Contingency Fees Act must be enacted to regulate the contingency fee arrangements.
Justice , Fairness