Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘litigation funding

Creation of a Contingent Legal Aid Fund?

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Ideas for  new ways of funding cases for persons of moderate means have been floating around for a number of years. JUSTICE produced a report on the matter as long ago as 1978. The Bar Council returned to the issue in 2008/9 when a policy group, chaired by Guy Mansfield QC, made proposals for the establishment of such a scheme. And suggestions for the creation of a scheme were made to Lord Justice Jackson’s Review of the Costs of Civil Litigation.

In that report, he did not make a definitive recommendation, but he did propose that the Government should undertake further modelling work to see whether a financially viable scheme could be created.

With recent cuts to the publicly funded legal aid scheme, Lord Justice Jackson has returned to the issue in a speech delivered in February 2016. He notes that such a scheme has successfully operated in Hong Kong for a number of years; and that similar schemes also operate in a number of Australian states.

A CLAF would not offer funding in all cases; it would have to be very selective in the cases it took on. As Lord Justice Jackson noted, it would – in effect – be a not-for-profit third party funding scheme. The idea provokes many questions:

  • where would the initial seed corn money come from?
  • how would the fund be sustained?
  • who would decide which cases to support?
  • would the introduction of such a scheme require changes to the normal principle that a loser pays the costs of the winner?

In his lecture, Lord Justice Jackson argues that the time has not come for more detailed work to be done on this issue and argues at the legal profession – the Bar, the Law Society and the Chartered Institute of Legal Executives – should come together an develop proposals.

Whether the legal profession will rise to the Jackson challenge is not at present clear – but it is an issue worth keeping an eye on.

To read the Jackson lecture, visit https://www.judiciary.gov.uk/wp-content/uploads/2016/02/lj-jackson-speech-clf-160202.pdf

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Written by lwtmp

March 20, 2016 at 5:11 pm

Posted in Chapter 10

Tagged with , ,

Litigation (crowd) funding – a new approach

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Litigation funding is normally associated with high value commercial cases. Litigation funders provide the financial resources for high cost litigation and commercial arbitration on the basis that they will receive a return on their investment – often a percentage of damages recovered or agreed. Litigation funders will not take on personal injury cases or consumer cases because the damages involved are (usually) too low

But an article in the Sunday Times 21 June 2015 caught my attention. Under the headline Man, 87, sues care home for right to kiss his wife it was reported that an 87 year old man was seeking to establish a right to kiss his wife, who lives in a care home suffering from dementia.

At the end of the article it was stated that the man’s lawyers were working pro bono but also they were seeking to raise £4000 for legal fees through a new company called CrowdJustice.

Launched on 25 May 2015, CrowdJustice seeks to raise modest sums – up to £5000 – to help defray costs in cases which the company thinks have some social importance, such as the treatment of the elderly and vulnerable or have a wider community impact.

An example of the latter is the case being brought by a Colombian man, Gilberto Torres, who is  fighting a legal case before the UK High Court in order to end the impunity of British oil companies’ actions abroad. He claims that

Me and my family have had our lives destroyed because I tried to take a stand when I saw human rights and environmental abuses being committed to protect the interests of BP in Colombia, where I worked as an engineer. I was kidnapped and tortured in retribution, and now we’ve been forced to leave Colombia and live in exile. Help us get our lives back, and help expose in court the human rights violations committed by fossil fuel companies abroad.

At the moment, CrowdJustice is taking cases on an invitation-only basis. But it inviting those who think they may have a case that affects their community to get in touch.

The website states:

When someone has a court case that they feel passionate about and that affects others in their community, they can set up a Case Page on CrowdJustice that explains what the case is about and why they need help funding it. That person – the Case Owner – sets a deadline and funding target of the amount they need to raise to help offset the costs of taking their case forward. It’s up to you to support them, help spread the word and make pledges to help them meet the funding target.

Only when the funding target is met do the pledges get collected and backers’ cards get charged. If the funding target is not met, the pledges made do not get collected.

When a case is successfully funded, a Case Owner will keep in touch and update backers about the latest developments in a case.

Unlike litigation funding, those who invest in these community cases will not usually see any return on their investment (unless they have pledged more than £1000, where they may receive a percentage of the sum pledged back). Any surplus  at the end of a case is paid to the Access to Justice Foundation.

This is an innovative approach to the challenge of enabling access to justice in cases of potential social importance. For more details go to https://www.crowdjustice.co.uk/

For more details on the very different work of commercial litigation funders go to the home page of the Association of Litigation Funders of England and Wales at http://associationoflitigationfunders.com/.
This site gives links to the member companies who are offering litigation funding in commercial cases.