ENGLAND & WALES Law and Practice Contributed by: Damian Taylor, Olga Ladrowska, Lawal Ijaodola and Eleanor Higginson, Slaughter and May
have obtained additional qualifications grant- ing them higher rights of audience; • solicitors without higher court qualifications have rights of audience in lower courts only (those below the High Court); • only solicitors have the right to conduct litiga- tion, as well as barristers who have specific authorisation; • litigants in person, who appear in court with- out legal representation, have both rights of audience and rights to conduct litigation in respect of their cases in all courts; and • foreign lawyers registered with the Solicitors Regulation Authority may assist in the con- duct of litigation under the instructions and supervision of a person who is authorised to conduct litigation, and may have rights of audience for such litigation if the proceedings are held in Chambers in the High Court or a County Court. 2. Litigation Funding 2.1 Third-Party Litigation Funding Until the 1990s, the funding of litigation by a third party was generally prohibited for reasons of public policy, particularly when done in expecta- tion of a profit. A series of judgments and statu- tory reforms mean that it is now permitted in civil litigation and has become an important feature of the legal landscape. Litigation funding is not subject to mandatory, statutory regulation, but a system of self-regu- lation has been in place since 2011. Members of the Association of Litigation Funders, an inde- pendent body, agree to abide by a code of con- duct that obliges funders to, among other things, maintain adequate levels of capital, maintain confidentiality and take reasonable steps to ensure that claimants receive independent legal
advice on the terms of proposed funding agree- ments. To the extent funders engage in conduct that is contrary to the code of conduct or oth- erwise undermines the integrity of the justice system, their arrangements may be held to be unenforceable. Litigation funding has grown significantly in the last decade, fuelled in large part by the estab- lishment of new rules that facilitate the bringing of class actions by those affected by breaches of competition law. Mindful of consumer pro- tection, the government has commissioned a review into third-party litigation funding, which is due to report in summer 2025. It may recom- mend greater regulation of the sector. 2.2 Third-Party Funding: Lawsuits Third-party funding can be used across a vari- ety of different types of claims, including breach of contract claims, professional liability claims, intellectual property claims, tax disputes and shareholder disputes, although claims generally need to be of a certain value to make funding profitable. Before agreeing to fund a claim, liti- gation funders will typically assess the claim’s viability, which will involve considering factors such as the skill and experience of the legal team, the value of the claim, the proportionality of legal costs and the likelihood of successful enforcement. Litigation funding is becoming increasingly common in areas such as large class actions, particularly for claims involving competition or environmental law, where claimants may either be unable to afford litigation costs or wish to share the financial risk.
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