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Wednesday 9th April 2008
Champerty and Maintenance are dead - Long live Third Party Litigation Funding!
Hopefully reports of the demise of champerty and maintenance will not be like the report of Mark Twain’s death – an exaggeration. Sir Gavin Lightman QC said, at a conference on Third Party Funding on 12th and 13th March, that it is a ”fundamental human right to access the court” and that “litigation is a business and like any other business, it requires private funding”. This was the theme of the first international conference to be held on this subject. It was attended by around 135 delegates from all over the world. There were delegates from our magic-circle firms and other big-named solicitors. The Australians and Americans were there, as well as the Germans, French, Dutch and Irish.
There were many presentations starting with how we came to have rules that preclude champerty and maintenance and recent case law (Arkin v Borchard Lines) which seems to have done away with them. There were presentations from funders who are looking for cases to fund worth £100,000 (Allianz) right up to £3 million (Harbour Litigation Funding). We were told about CFA’s, ATE’s, Dispute Risk Hedging and the Africa Fund.
Of course, costs were discussed and BDO Stoy Hayward had carried out some research with the C&I Group which reported that there were 81% of instances where the final fee came at more than 10% above the estimate. “Estimates of legal fees really need to be as accurate as possible” said Kathryn Britten, and “one thing people don’t want is surprises at the end”. Kain Knight couldn’t agree more.
CFA’s were raised and discussed. Did you know that there have been 177,000 legal challenges since they were introduced in 1998? Maybe it is time to look at a new way of funding the litigation and one thing we can be sure of is that we are not going to see the return of Legal Aid!
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