An assessment of uplift fees in Australia: A means to improve access to justice or creating further problems?

Amy Pascoe

Increasing access to justice is a priority throughout a number of jurisdictions. This is due to the simple fact that legal costs are expensive and not many people can access the courts due to the financial burden of sustaining a legal action. Over the years, various reforms have taken place throughout England, Wales and Australia to promote an increase in the amount of citizens being able to access the courts to vindicate their rights. This paper focuses on the reform of conditional fee arrangements involving uplift fees. Uplift fees were introduced as an incentive for lawyers to take on more clients on a conditional fee (or no win/no fee) basis. An uplift fee provides the lawyer with an opportunity to charge an increase (of up to 25%) on top of their legal fees rendered at the successful conclusion of a matter for the risk involved in a speculative action. Uplift fees operate throughout every Australian jurisdiction. Very little discussion has taken place in regards to the potential problems which have and could occur with the uplift fees implementation throughout Australia. This paper conducts a doctrinal analysis of the history of the uplift fee in England, Wales and Australia to identify whether the fee is providing an increase to access to justice or merely moving problems from one area to another. The paper discovers that the uplift fee is problematic from both a theoretical and practical perspective. Very little statutory safeguards are in place to prevent abuse and problems have been encountered throughout many common law jurisdictions. Any move to fix these problems merely create other unforeseen problems. Empirical evidence also suggests that uplift fees are not providing the intended outcome of increased access to justice, therefore this paper recommends reform. Most migrants reported being well integrated and appreciated safety and security in Australia, in addition to educational opportunities for themselves and their children. Some migrants often experienced racial discrimination, and felt isolated and lonely. Coping strategies by migrants included seeking support from family, friends and faith communities and most felt that information about support services was not sufficient, and recommended accessible and culturally appropriate services. Migrant Support Service Providers (MSSPs) indicated that support services for migrants were not sufficient and not easily accessible. They recommended ways to improve support services, such as consulting with migrants, adapting services to meet their needs and coordinating longer-term services.

An assessment of uplift fees in Australia: A means to improve access to justice or creating further problems?

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