The Future of Contingent Fee in Thailand

Abstract

A contingency agreement is one of fee structure types that has been used over the world. However, in Thai jurisdiction, it has been prohibited for decades as the court views that such agreement is contradict to Thai public policy and good moral. This is because it allows an attorney to share some interest with the outcome of the lawsuit. Nonetheless, the Supreme Court precedent neither provides nor explains the meaning and scope of contingency agreement as a guidance. Additionally, since there is an amendment of the Civil Procedure Code on the class action lawsuit where the class’s lawyer is allowed to receive a contingent fee as an award. Thereby, there is no unanimous direction for contingent fee in Thailand. On the contrary, in United Kingdom, it has a very clear position on this issue, i.e., the contingent fee is classified into three types, and each type has its own specific laws and regulations. While in Singapore, the contingent fee is strictly prohibited. Nonetheless, it allows a conditional fee to be applied instead. In light of this, as the debate concerning the advantages and disadvantages of contingent fee has been continuously discussed, this article finds that, comparing to foreign jurisdiction, the current Thai legal system is now developing and yet the issues of contingent fee has not been properly regulated. Therefore, this article proposes that the contingent fee should be allowed and regulated by specific regulation in order to minimize concerns of application of the contingent fee.