11. Funding Access to Justice

2021 ◽  
pp. 371-414
Author(s):  
Alisdair A. Gillespie ◽  
Siobhan Weare
Keyword(s):  
Civil Litigation ◽  
Third Party ◽  
Access To Justice ◽  
Legal Aid ◽  
Criminal Courts ◽  
Real Possibility ◽  
Before And After ◽  
Alternative Sources ◽  
Party Funding

This chapter examines how litigation is funded. It considers the growth, and eventual decline, in legal aid, and how alternative sources of funding have begun to be used. The chapter considers both criminal and civil litigation. It notes how there is an increase in defendants-in-person before the criminal courts because of restrictions in legal aid. It questions whether this is appropriate, particularly where the loss of liberty is a real possibility. The chapter also considers how civil litigation is now funded. This includes how ‘no win, no fee’ arrangements were at first encouraged, but then subject to restrictions because it was felt the balance of risk vs. gain was inappropriate. The chapter charts the growth of before and after-the-event insurance, and the increase in third-party funding where the litigation is for large sums of money.

scholarly journals Third party funding and access to justice

2021 ◽  
Vol 3 (2) ◽  
pp. 135-148
Author(s):  
Milan Lazić ◽  
Milica Savić
Keyword(s):  
Third Party ◽  
Access To Justice ◽  
Conflict Of Interests ◽  
Party Funding

The purpose of this paper to analyze whether and to what extent are third-party funding and access to justice intertwined and compatible. The analysis started from recognizing most common challenges with third-party funding and whether these challenges may be overcome with existing regulation and guidelines. Global lack of regulation of this subject is noticeable. This increases the risks of having undisclosed conflict of interests between various participants and affects the confidentiality, efficiency and fairness of the proceedings and ultimately the access to justice considerations. Although third party funding undoubtedly contributes to larger access to justice, an unregulated market of this kind may also draw adverse inference to the access to justice. In conclusion, authors of this paper call for wider regulation of this matter, including both through local legislation and arbitration rules.

16. Funding Civil Litigation

2019 ◽  
pp. 557-584
Author(s):  
Alisdair A. Gillespie ◽  
Siobhan Weare
Keyword(s):  
Civil Litigation ◽  
Access To Justice ◽  
Legal Aid ◽  
Eligibility Criteria ◽  
Legal Advice ◽  
Alternative Funding ◽  
Key Issues

This chapter examines the key issues surrounding the funding of civil litigation and how this impacts upon access to justice. It begins with a discussion of the concept of legal aid before moving on to consider the reforms introduced under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, where legal aid has been withdrawn from significant forms of civil litigation and the eligibility criteria for legal aid altered. The roles of alternative funding arrangements and non-legal organizations operating in the provision of legal advice are also explored.

scholarly journals The new directive on an EU-wide representative action and third-party litigation funding: An opportunity for European consumers?

2021 ◽  
Vol 3 (1) ◽  
pp. 95-117
Author(s):  
Massaro Piletta
Keyword(s):  
Comparative Method ◽  
The United States ◽  
Regulatory Competition ◽  
Third Party ◽  
Access To Justice ◽  
Cross Border ◽  
Collective Redress ◽  
Opt Out ◽  
Specific Regulation ◽  
Party Funding

After years of compensatory collective redress being left to a sort of regulatory competition among Member States, Directive 1828/2020 finally introduced an EU wide representative action scheme, aimed at strengthening the position of European consumers vis-à-vis new market dynamics such as globalisation and digitalisation. The new system, which shall run in parallel with national tools, introduces some innovations such as a cross-border action mechanism, the possibility of adopting an opt-out model and a specific regulation of third-party litigation funding in the context of collective redress. This aspect, addressed already in the 2013 Recommendation, is of particular interest, because third party funding represents a particularly powerful complement to collective redress in easing citizens' access to justice. However, the provisions introduced with Directive 1828/2020 leave some issues open. In particular, the Court's role in managing the funding agreement, with special reference to the funder's fee, and the effect of the funding agreement in case an opt-out adhesion mechanism is adopted are of paramount importance and still need to be addressed interpretatively. In this task, the comparative method will be particularly helpful in analysing the solution which Countries more familiar with third party funding, like Australia, Canada or the United States have introduced or discussed.

Last Chance for Justice

2019 ◽  
pp. 308-338
Author(s):  
Carolyn Hoyle ◽  
Mai Sato
Keyword(s):  
Decision Making ◽  
Forensic Science ◽  
Referral Rate ◽  
Access To Justice ◽  
Legal Aid ◽  
Criminal Cases ◽  
Real Possibility ◽  
The Real ◽  
Court Of Appeal ◽  
Science Evidence

This concluding chapter summarises the book's key findings and examines the main cultural and structural influences on the Criminal Cases Review Commission's decision-making. It begins with a discussion of three significant changes to the Commission's ‘surround’: reductions in legal aid for defendants and appellants; growing evidence of non-disclosure of potentially exculpatory evidence by police and prosecution; and the declining reliability of forensic science evidence. The chapter then considers the critics' claim that the Commission's referral rate is too low and how this raises concerns about access to justice, along with developments in the surround in relation to the ‘field’ and the ‘frame’. It also analyses variability in the Commission's response to cases and its relationship with various ‘stakeholders’. Finally, it looks at the notion that the Commission is too ‘deferential’ to the Court of Appeal when it comes to making decisions about which cases meet the ‘real possibility test’.

The English Legal System

2019 ◽  
Author(s):  
Alisdair Gillespie ◽  
Siobhan Weare
Keyword(s):  
Legal System ◽  
Alternative Dispute Resolution ◽  
Justice System ◽  
Judicial Independence ◽  
Civil Litigation ◽  
Access To Justice ◽  
Legal Aid ◽  
Police Powers ◽  
System P ◽  
Civil Justice System

The English Legal System presents the main areas of the legal system and encourages a critique of the wider aspects of how law is made and reformed. The book is structured in five parts. Part I looks at the sources of law including domestic and international sources. Part II looks at the courts and the practitioners. It considers the structure of the courts and tribunals, judges and judicial independence, and the legal professions. Part III examines the criminal justice system. It begins by looking at police powers and the decision to charge and prosecute a suspect. It describes issues related to lay justice, trials, and criminal appeals, including access to justice and legal aid. The next part is about the civil justice system. It looks at civil litigation, remedies, appeals and alternative dispute resolution, as well as the funding of civil litigation. The final part looks to the future.

Part V Remedies and Costs, 26 Third-party Funding in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Blackaby Nigel ◽  
Wilbraham Alex
Keyword(s):  
International Investment ◽  
Third Party ◽  
Access To Justice ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Legal Costs ◽  
Party Funding ◽  
Investment Treaty Arbitration

This chapter discusses the issue of third-party funding in international investment arbitration. Third-party funding has become an established part of the investment arbitration landscape. Despite criticism in some quarters, tribunals and international arbitral bodies have tended to favour the view that third-party funding promotes access to justice rather than encouraging frivolous claims. Tribunals have consistently held that receipt of third-party funding is unlikely to affect a claimant’s position from a jurisdictional perspective and will not affect a claimant’s ability to recover legal costs in cases where tribunals make costs awards. The costs of third-party funding itself may be recoverable in some circumstances. There is a growing tendency among tribunals to require disclosure by funded claimants of the existence and identity of third-party funders. It is, however, unlikely that claimants will commonly be required to disclose the terms of any funding agreement except in rare cases when security for costs is being considered.

Third-Party Funding in International Arbitration: Ownership of the Claim, Consequences for Costs Orders, and Regulation

2020 ◽  
Vol 36 (2) ◽  
pp. 275-295
Author(s):  
Sahana Ramesh
Keyword(s):  
Case Law ◽  
Third Party ◽  
Access To Justice ◽  
International Arbitration ◽  
Specific Question ◽  
Res Judicata ◽  
Party Funding

Abstract The increasing use of third-party funding in international arbitration has given rise to a myriad of challenges. Many of these remain unaddressed. Even though some jurisdictions have sought to regulate the sphere of third-party funding in international arbitration, it remains largely unregulated. The result is that a third-party funder is not held accountable. This article examines the issue of ownership of a funded international arbitration claim, and the consequences of that finding on an arbitral tribunal’s ability to impose costs order on a funder. The objective is to ensure that a funder is playing a role in the arbitral process merely to facilitate access to justice, and nothing more. The examination in this article comprises a review of case law, primarily of English courts, in the context of litigation funding, and then determining whether it is possible to transpose the learnings therefrom to the arbitration context. A brief discussion on the applicability of the doctrine of res judicata, in the context of the issues raised in this article, is undertaken. Finally, the article also considers the best way to regulate the specific question of imposing costs on a third-party funder in international arbitration.

11. Access to the Law

2017 ◽  
Author(s):  
Alisdair Gillespie ◽  
Siobhan Weare
Keyword(s):  
Human Rights ◽  
Civil Litigation ◽  
Access To Justice ◽  
Legal Aid ◽  
Political Issue ◽  
Legal Advice ◽  
Alternative Funding ◽  
Key Issues ◽  
The Law ◽  
Public Money

This chapter examines the key issues surrounding the funding of litigation and how this impacts upon access to justice. It begins with a discussion of the concept of legal aid. It then covers the administration of legal aid; civil legal aid; criminal legal aid; legal aid and human rights; and alternative funding arrangements. Legal aid has become an increasingly political issue with many politicians believing that public money should not be spent on lawyers. The latest change in legal aid includes the fact that legal aid is withdrawn from significant forms of civil litigation. Non-legal organizations also operate in the provision of legal advice, including universities through the provision of law clinics.

scholarly journals Critical Appraisal of Third Party Funding in India

2021 ◽  
Vol 58 (1) ◽  
pp. 3462-3467
Author(s):  
Ms. Seemasmiti Pattjoshi, Dr. Puranjoy Ghosh
Keyword(s):  
Dispute Resolution ◽  
Critical Appraisal ◽  
Third Party ◽  
Access To Justice ◽  
Commercial Arbitration ◽  
Present Discussion ◽  
International Commercial Arbitration ◽  
The World ◽  
Substantive Justice ◽  
Party Funding

Third-party funding in International Commercial Arbitration is one of the most contemporaneous and controversial issue in the normative framework in India. The last several years have witnessed increasing involvement of Third Party Funders in International Commercial Arbitration proceedings. Third-party funding has been considered as one of the means of access to justice for those who have a credible claim but no financial means to pursue it.  Dispute resolution in India tends to be a cost-heavy proposition for the parties involved. The present discussion highlights critical appraisal regarding TPF (Third Party Funding) from the delivery of procedural and substantive justice as well as suggesting legal and jurisprudential grounds in third party funding governance all across the world.

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