In an announcement from the Civil Justice Council (CJC), the Litigation Funding Working Group has published the Interim Report and Consultation for its review of litigation funding. As laid out in the report’s foreword, the publication of the Interim Report represents the first phase of the working group’s efforts, and therefore does not contain any recommendations at this stage. The purpose of the Interim Report is to provide the background to the issues being examined, as well as providing the context for the questions in the Consultation.
The report itself is divided into six parts, which are as follows:
- The Development of Third Party Litigation Funding in England and Wales
- The Development of Self-Regulation of Third Party Litigation Funding
- Different Approaches to Regulation
- Approaches to Regulation in Other Jurisdictions
- The Relationship between Costs and Funding
- Funding Options
Each of these parts is further divided into two sections, with the first section acting as a brief overview of the topic that covers the ‘Key Points’. The second section provides an in-depth exploration of these issues, including examples of relevant case law and drawing upon existing research and studies covering third-party litigation funding.
The Consultation, which represents the second phase for the working group includes a list of 39 questions which consultees are encouraged to answer, divided into the following categories:
- Questions concerning ‘whether and how, and if required, by whom, third party funding should be regulated’ and the relationship between third party funding and litigation costs.
- Questions concerning ‘whether and, if so to what extent a funder’s return on any third party funding agreement should be subject to a cap.’
- Questions concerning how third party funding ‘should best be deployed relative to other sources of funding, including but not limited to: legal expenses insurance; and crowd funding.’
- Questions concerning the role that should be played by ‘rules of court, and the court itself . . . in controlling the conduct of litigation supported by third party funding or similar funding arrangements.’
- Questions concerning provision to protect claimants.
- Questions concerning the encouragement of litigation.
- General Issues
The consultation period is now open and will run for three months, closing on Friday 31 January 2025 at 23:59.
The publication of the Interim Report and Consultation is accompanied by the following statement from Sir Geoffrey Vos, Master of the Rolls, Head of Civil Justice and Chair of the CJC:
“I welcome the publication of the CJC’s interim report and consultation on litigation funding. Litigation funding plays an important role in ensuring access to justice. I am grateful to co-chairs Dr John Sorabji and Mr Justice Simon Picken, and their working group for this report. I encourage all interested parties to read the report and respond to the consultation, which will run until Friday 31 January 2025. I look forward to the publication of the Working Group’s final report in summer 2025.
“It is a busy and exciting time for the CJC, which is also conducting a review of the Solicitors Act 1974, through a working group chaired by Mr Justice Adam Johnson. The CJC understands that there will be areas of overlap between the work of that group and the Litigation Funding Group. It will create valuable consistency and coherence for the Solicitors Act Working Group to be able to take account of the responses to this Consultation by the Litigation Funding Group as they take forward their work in the new year.”
Following the conclusion of the consultation period, the third and final phase will begin, during which the Working Group will prepare and then submit its Final Report and Recommendations to the CJC. The Interim Report confirms that the current timeline still expects for the Final Report to be delivered and published by the summer of 2025.
The Interim Report’s appendices also include a full list of the members for both the Working Party and the wider Consultation Group, listed below.
Working Party
Mr Justice Simon Picken (CJC member) – Co-Chair, Dr John Sorabji (CJC member) – Co-Chair, Mrs Justice Sara Cockerill, Professor Christopher Hodges OBE (Regulatory Horizons Council), Lucy Castledine (Financial Conduct Authority), and Nicholas Bacon KC.
Wider Consultation Group
Alistair Kinley (Director of Policy & Government Affairs, Clyde & Co), Professor Andrew Higgins (CJC member; Professor of Civil Justice Systems, University of Oxford), Dr Mark Friston (Barrister, Hailsham Chambers; Bar Council Representative), Jackie Griffiths (Head of Regulatory Policy, Solicitors Regulation Authority), Jamie Molloy (Head of ATE, Ignite Speciality Risk), Jennifer Morrissey (Partner, Harcus Parker; Law Society Representative), Julian Chamberlayne (Partner, Stewarts) Kenny Henderson, (Legal Adviser, Fair Civil Justice; Partner, CMS Cameron McKenna Nabarro), Lucy Anderson (Senior Lawyer, The Consumers’ Association (Which?)), Neil Purslow (Chair of the Executive Committee, International Legal Finance Association; UK CIO, Therium Litigation Funding), Professor Neil Rickman (Professor of Economics, University of Surrey), Nicola Critchley (CJC member; Partner, DWF), Professor Rachael Mulheron KC (Hon) (Professor of Tort Law and Civil Justice, Queen Mary University of London), Rhea Gupta (Legal and Policy Research Consultant, Class Representatives Network), Stephen Wisking (Partner, Herbert Smith Freehills), Suganya Suriyakumaran (Legal Services Board), Susan Dunn (Director, Association of Litigation Funders; Head of Litigation Funding, Harbour Litigation Funding), Tajinder Bhamra (Interim Head of Civil Litigation Funding and Costs Policy, Ministry of Justice), and Tom Steindler (Managing Director, Exton Advisors).
The full Interim Report can be read here.
