The future of contingent fee in Thailand: a comparative analysis

A contingency fee agreement is one of the fee structure types that has been used over the world. Although contingency fee agreement is principally allowed in some countries, there are still other countries such as Thailand in which the issue on contingency fee agreement remains challenging.In Thailand, the contingency fee agreement has been prohibited for decades due to the court’s view that such agreement contradicts with Thai public policy and good moral as it allows an attorney to share interests in the outcome of a lawsuit. Moreover, there is no law related to the contingency fee nor there is a Supreme Court precedent that can be used at this instant. The Supreme Court precedent regarding contingency fee is self-contradictory, one precedent is inconsistent with another. However, a recent development on a class action lawsuit suggests that Thai court is inclining to allow a contingency fee agreement as the lawyer in such class action lawsuit was permitted to receive a contingent fee as an award. As such, there is no unanimous direction for contingent fee in Thailand since there is no guidance to the meaning and the scope of contingency fee agreement.Similarly to Thailand, Singapore, Germany and France also strictly prohibits the contingent fee although the laws in the latter countries are more relaxed in terms of having exceptions. The prohibition of contingent fee can be exempted in the aforementioned countries if the requirements set out in each country are met. In addition, Singapore recognizes another fee structure called a conditional fee whereby the said fee is allowed to be applied instead of a contingent fee.On the contrary, English law clearly establishes its position on this issue, it accepts a contingency fee agreement. Under English legal system, the contingent fee is classified into three different types, i.e. Normal Success Fee, Uplift Success Fee, Damages-Based Success Fee, whereby each type has its own specific laws and regulations.In light of this, as the debate concerning the advantages and disadvantages of contingent fee has been continuously discussed, the author finds that, comparing to foreign jurisdiction, the current Thai legal system is now developing but the issues of contingent fee has not yet been properly regulated. Therefore, the author proposes that the contingent fee should be permitted in Thailand and should be regulated by a specific regulation in order to minimize concerns regarding the application of contingent fee.