BITTER AND TWISTED? ON PERSONAL INJURY CLAIMS, PREDATORY FEES AND ACCESS TO JUSTICE

Abstract

This article explores the nature and extent of contingency-fee agreements in light of Justin John Bitter NO v Ronald Bobroff & Partners Inc v The Road Accident Fund (Case Number 11069/13 (GLDJ)). The case in question viewed the nature of a contingency fee agreement and determined that a contingency fee agreement is only valid if it meets the requirements of the Contingency Fees Act 66 of 1997. In addition, the court expressed itself strongly against the use of the so-called “common law contingency agreement”. This article analyses the case in question and then proceeds to evaluate the statutorily prescribed agreement. It argues that the Contingency Fees Act is not user-friendly and that the prescribed contingency fees agreement may be greatly improved by redrafting it in plain language. In addition, the new Legal Practice Act 2 of 2014 supports the sentiments that were expressed in the Bitter case, but as it does not repeal the Contingency Fees Act, problems with plain language and drafting of contingency fee agreements remain. While this article agrees with the Bitter case, it stresses that it is imperative for the contingency fee agreements to be redrafted in plain language, which implies an overhaul of the Contingency Fees Act. In the final instance it is recommended that even though contingency fee agreements are controversial, they do play an important part in providing indigent litigants with access to justice. These agreements should, however, be strictly enforced in order to ensure that clients are not exploited.