| Summary: | <p>The practice of third parties funding litigation for commercial purposes was, for centuries, impermissible, owing to the operation of the doctrines of maintenance and champerty. But it is now permissible in England and Australia, and accepted as part of the legal landscape. The change in the court’s attitude was largely driven by a pragmatic desire to improve access to justice for the impecunious. </p>
<p>The question motivating this thesis is: where does litigation funding fit in the modern civil justice system?</p>
<p>This thesis has three objectives. The first is to assess critically the various criticisms that are made of litigation funding (such as concern about the prospect of third-party control of litigation, or the commodification of legal claims). These criticisms – which are the vestiges of the doctrines of maintenance and champerty – can be seen as reflecting a particular concept of the proper role and values of the civil justice system. But recent decades have seen enormous changes in the civil justice system and the legal profession – including the acceptance (or imposition) of managerial culture, and market rhetoric. When one considers the values and priorities of the modern civil justice system, it can be seen that commercial third-party litigation funding is a consistent part of the broader picture. </p>
<p>Secondly, the thesis presents a more nuanced account of how litigation funding promotes ‘access to justice’: namely, that it removes or mitigates a variety of disincentives to ligation (which deter all rational litigants, and not just the impecunious). </p>
<p>Finally, the thesis identifies market failures which might exist or emerge in the litigation funding market, identifies some difficulties in the current state of regulation in England and Australia, and make some broad suggestions for regulatory options. The task of regulation ought to be informed by the conclusions reached in the first parts of the thesis. </p>
|
|---|