Print friendly version
With claimants looking at new ways to fund litigation and solicitors in England & Wales now obliged to explore with their clients the various options available, we have focused in this edition on third party funding and ATE - including different types of insurance - across Europe and Asia.    The feature article explores the evolving rules in England & Wales, which will be invaluable not only for claimants without the funds to prosecute their claims but also for asset-rich businesses who do not wish to affect their  liquidity  by launching  and maintaining  legal proceedings.  The commentary section provides a brief review of the different approaches to funding across Europe and Asia.  Further in-depth detailed advice is of course available; I would be happy to discuss further the latest trends and our Bird & Bird policies - for example, regarding the way we can work with clients contemplating funding options and, in appropriate circumstances, how such options can work in conjunction with CFAs.    Our updates section sets out recent developments across Europe - to give you a flavour of what you need to know across the different jurisdictions. Finally, we include details of forthcoming events. Please don't hesitate to contact us if you are interested in any of the events listed or would like to discuss any of the areas covered in this edition. Best wishes Jane Player International Dispute Resolution Group
Feature article   Third party funding litigation Jeremy Sharman and Carolyn Greene, London      The last three years have seen the emergence of a high level of interest in the UK in the concept of third party funding of litigation, and a number of commercial funders now offer third party funding services. Historically, English law refused to recognise arrangements whereby litigation was funded or "maintained" by an unrelated third party acting, without "just cause".  The underlying rationale was that third party involvement could prejudice the proper exercise of justice, for example by encouraging the over inflation of claims. This extended to "champertous" arrangements (where a third party would fund an action in return for a share of the proceeds of the litigation) and to arbitration (but not to overseas litigation, to which English public policy does not apply).   Changing attitude of the Courts The Criminal Law Act of 1967 abolished maintenance (including champerty) as a crime at common law. However, it left intact the rule that a contract which breached the principles of maintenance would be contrary to public policy and, therefore, void and unenforceable.    "The courts have increasingly recognised that public policy must evolve to keep pace with changing times and have become more willing to accept third party funding arrangements" In recent years, the English courts have increasingly recognised that public policy must evolve to keep pace with changing times and have become more willing to accept third party funding arrangements. This change in attitude has been due in part to the erosion of legal aid, and the realisation that third party funding may be necessary to ensure proper access to civil justice.  The courts have also been influenced by developments in Australia, where third party funding has been regarded as acceptable and necessary for over a decade.  Recent case law has shown that the English courts now consider that third party funding will not, in itself, breach the rules against maintenance or champerty unless the funding arrangement contains an element of impropriety (see the leading case of Arkin v Borchard Line Ltd and Others [2005] EWCA 655).  Factors the Courts will consider So what factors will the courts take into account when considering whether a funding arrangement is in some way improper?    Click here to read more>>

Commentary

Professional rules in Belgium do not currently make any allowance for third party funding. Patrick Michielsen, Brussels considers whether - without the introduction of new legislation - there is any way around current regulations.

The issue of third party funders continues to be a matter of heated debate in Hong Kong and the growing concerns of access to justice are pushing the Courts to take a more flexible approach to litigation funding. 
- Roberta Chan, Hong Kong

Click here to view the full commentaries>>

Updates

Belgium has introduced serious criminal sanctions to tackle its reputation as a hub of counterfeiting. But does the new law give sufficient clarity to overcome these problems? 
- Isabelle Dupuis and Edwige Cottenie, Brussels
 
The Rome I Regulation harmonises the rules on the law applicable to contractual obligations and increases certainty in this area. Abby Minns, London sets out some of the main features of the new regime.

Click here to view the full updates>>