The Favoring Plaintiff Fee-Shifting Rule in Europe: An Alternative to Legal Aid in Financing Civil Litigation

Abstract

This paper aims to investigate whether (inEurope) the Favoring Plaintifffee-shifting Rule can be an alternative to legal aid for assisting wealth-constrained Plaintiffs in pursuing cases, that would otherwise be dropped. According to the Favoring Plaintiff fee-shifting Rule, in litigation a successful Plaintiff is able to recover attorney’s fees, while a successful Defendant is not. By means of a game theoretic model, it is firstly shown that the rule, by reducing the Plaintiff’s expected cost from litigation, is effective in facilitating the Plaintiff’s access to Justice. Furthermore, under certain conditions it might also be more effective than legal aid. Moreover, it is shown how the litigation rate and the number of settled cases are differently affected by legal aid and by the Favoring Plaintiff fee-shifting Rule. In particular, while legal aid increases the litigation rate, the number of cases that are litigated rather than settled always decreases under the Favoring Plaintiff fee-shifting Rule. Finally it is briefly discussed how the Favoring Plaintiff fee-shifting Rule could be implemented from a policy perspective.