Policy in practice: litigation funding in England and Wales

In the latest episode of the policy in practice podcast, David Gauke, Malcolm Hitching, and James Popperwell discuss litigation funding in England and Wales, including the impact of legal rulings, the ongoing Civil Justice Council (CJC) review, and whether or not further regulation might be needed to preserve access to justice while protecting consumers.

They cover:

• the impact of the PACCAR ruling on litigation funding agreements;
• the CJC's review of the litigation funding sector in England and Wales; and
• whether or not further regulation might provide relevant protections for consumers.

If you would like more information or want to discuss any of the topics in this podcast, please get in touch with David, Malcolm or James.

Summary

In this latest policy in practice podcast episode, David Gauke, head of public policy at Macfarlanes, is joined by finance partner Malcolm Hitching and litigation partner James Popperwell to discuss the ongoing review of litigation funding in the UK and its implications for the legal landscape.

The conversation begins by examining the impact of the PACCAR ruling in 2023, which has caused significant uncertainty in the litigation funding market. They discuss how the ruling affects the enforceability of litigation funding agreements, particularly Damages-Based Agreements (DBAs), and how this has led to a reduction in available funding and access to justice for claimants.

The conversation moves to the CJC's review, which is focused on assessing whether the current funding framework leads to harm or unfairness. They explore concerns regarding unmeritorious claims, the transparency of funding agreements, and the influence of funders on the litigation process.

Lastly, they discuss wherher or not clearer regulation and consumer protection is needed to ensure fair access to justice for non-commercial claimants. The speakers emphasise the importance of balancing consumer safeguards with preserving the freedom of contract for commercial parties.