THE NUB OF THE BOBROFF CASE

Many claims against the Road Accident Fund (RAF) are lodged by personal injury attorneys acting on a no-win, no-fee basis.

The Contingency Fees Act provides for an attorney working on this basis to charge double his or her normal fee based on the time spent on the case, or 25 percent of the settlement, whichever is lower.

When representing clients claiming from the RAF, Ronald Bobroff & Partners charged more than the Act allowed and claimed that they were entitled to do so because their fee agreements were common-law ones.

However, in 2013, three High Court judges ruled in an application brought by the South African Association of Personal Injury Lawyers, under Ronald Bobroff’s presidency, that lawyers may not enter into agreements with their clients that do not comply with the Contingency Fees Act. Appeals against the judgment were denied.

Bobroff & Partners were then found to have contravened the Contingency Fees Act in a number of cases brought by Johannesburg attorney Anthony Millar.

The courts that heard those cases ordered the lawyers to draw up invoices based on the time spent on the cases and reimburse their former clients the difference between these costs and the legal fees they charged.

Ronald and Darren Bobroff always maintained that they believed they were allowed to charge more than the Contingency Fees Act, because the Law Society of the Northern Provinces had sought legal opinion and given them to believe that they could enter into commonlaw fee agreements. Ronald Bobroff served as a councillor of the Law Society when it formed this view and was previously its president.

Many other personal injury attorneys also entered into common-law fee agreements rather than complying with the Contingency Fees Act, because this was less administratively burdensome. If they charged more than 25 percent of the settlement, the fees would have contravened the Act, but if they charged 25 percent of the settlement, the amount may be regarded as unlawful if it was more than twice their normal fees. This is more likely where large settlements were awarded.

Millar is now the president of the Law Society in the Northern Provinces.

Asked if the Law Society would take any action to seek out members’ clients who may have been overcharged, Millar said there are 250 000 RAF settlements a year and Law Society did not have the ability to go through these settlements to check how much accident victims were charged by their lawyers.

He urges anyone who believes they may have been overcharged by their attorney to approach a new attorney for assistance quickly, because claims for fee refunds could prescribe in February next year, three years after the Bobroffs exhausted their appeals in court cases on the lawfulness of fee agreements beyond the Contingency Fees Act.