In his 2009 Report from the Review of Civil Litigation Costs, Lord Justice Jackson concluded that “in principle, third party litigation funding is beneficial and should be supported” not least because it promotes access to justice and, for some, may be the only means of funding litigation. Increasingly however, the English Courts have interrogated the motivations of those benefitting from third-party funding, with opponents deploying aggressive tactics seeking to undermine funding arrangements and impeding the progression of funded actions.
An overview of the Court’s approach to third-party funding
In recent years, significant judgments relating to matters of funding have been examined at length by the legal profession. Excalibur, Davey v Money and the ongoing Trucks litigation provide but a few examples. These include the risk of funders exercising excessive influence or control; the enforceability and adequacy of an applicants’ funding arrangements in collective proceedings; and indemnity costs orders. In Wall v RBS, the Court reminded parties to consider whether their opponent may be in receipt of funding and if so, to consider seeking security for costs directly from the funder. This tactic was deployed shortly thereafter in the RBS Rights Issue Litigation case where a commercial funder was ordered to pay security for costs to the defendant bank.
One notable trend that emerges from the line of judgments on these matters is the judicial emphasis upon the individual context of funded cases falling under scrutiny. A further common thread brings out the positive role that litigation funding can play in affording parties access to justice.
Akhmedova v Akhmedov
In December 2016, Farkhad Akhmedov was ordered to pay his wife, Tatiana, £453,576,152. This was the largest award reportedly made in matrimonial proceedings in the UK, representing a 41.5% share of his identified assets.
Tatiana secured funding from Burford Capital (Burford) to facilitate her recovery of “sums already awarded to her in the face of the Husband's contumelious conduct (assisted by others) in evading and frustrating the enforcement of the judgment debt”. Mrs Justice Knowles observed “Without such funding, the Wife would lose access to justice and the chance of recovering the monies awarded to her”.
Tatiana contended that the couple’s son, Temur, has played a crucial role as his “father’s lieutenant” to put assets well beyond her reach. The son sought an injunction forbidding Tatiana from instructing any lawyers financed by a litigation funder on the basis that such arrangement was champertous and therefore contrary to public policy. Temur also sought disclosure of the retainer and funding documents between his mother, her lawyers and Burford. Tatiana applied to strike out her son’s application.
As a preliminary matter, Burford is a founding member of the Association of Litigation Funders (ALF) and committed to the Code of Conduct endorsed by the Civil Justice Council (the Code”). The Code specifically governs the control which can be exercised by a funder, forbidding the funder from seeking to influence the client’s legal advisors to cede control or conduct of the dispute to the funder.
In January 2018, Tatiana entered into a Deed of Assignment in respect of her funding arrangements; the effect of which was that she retained sole control over the litigation unless and until she defaulted in paying Burford. Temur challenged this, relying on the “significant control” ceded by his mother to Burford. Temur also argued that under the funding arrangement, Burford was required to consent to any settlement of the enforcement proceedings.
Tatiana’s solicitor confirmed that his client decided what steps to take through instructions to her solicitor. He confirmed that, “In my dealings with Burford, they have never sought to exercise control over the litigation but, to the contrary, have always made clear that it is for [the Wife] to decide what steps to take”.
Mrs Justice Knowles referred to Davey v Money and concluded public policy would only intervene to prohibit a funder from exercising rights of control in a manner such as “to suppress evidence, influence witnesses, or procure an improper settlement”. She noted that in circumstances where the son had accepted without reservation that the litigation was being pursued entirely properly and appropriately by his mother and her solicitors, it was difficult to see a great deal of substance in this point.
With respect to settlement, Mrs Justice Knowles observed that, even if Tatiana was required to obtain Burford’s consent before settling her the action, that would appear to be a perfectly proper protection for Burford as funder and would not tend to corrupt justice.
Temur’s main argument was that since solicitors cannot enter into conditional fee arrangements (CFAs) in family proceedings, Parliament must also have intended to prohibit those solicitors from receiving third party funding.
Temur emphasized the significant value of the financial investment made by Burford in support of the litigation. Assuming that Temur was correct, Mrs Justice Knowles said she could not see how that would render the funding arrangement champertous. As part of her consideration of the relevant law, Mrs Justice Knowles referred to the observations of Lord Justice Neuberger MR (as he then was) in Sibthorpe that: “…the law of champerty should be curtailed rather than expanded by the courts in a context where access to justice is difficult to achieve for the great majority of citizens, given the ever reducing availability of legal aid, and where legislative policy has shifted to permit a wider variety of more flexible funding arrangements.”
Mrs Justice Knowles remarked that Temur’s allegation that Burford stood to profit from any settlement was obvious but it did not render the agreement unlawfully champertous such that relief would be afforded. She was wary of drawing any conclusion as to whether the prohibition on CFAs in family proceedings should apply by analogy to third-party funding in family proceedings. She recognised that whilst there is an valid concern about a lawyer having a financial interest in a result which may “improperly influence” the advice and the representation given, this is distinct from a third-party funding arrangement where the lawyers have no financial interest in the result.
She concluded judgment that third-party funding has been accepted in England & Wales to be desirable to facilitate access to justice and where first-instance decisions in the Family Division have concluded that: (a) it is “a necessary and invaluable service in the right case”; and (b) that nothing should be said “that makes it even more difficult for litigants to obtain litigation funding in the future, particularly given that there is no legal aid available in this area anymore”
Other key points in the Judgment
Mrs Justice Knowles further stated that it facilitates the administration of justice for professional funders, members of the ALF, to be involved in rigorous analysis and review of the cases which they fund.
Further, lack of knowledge of a party as to the precise terms of a funding agreement does not justify further probing in circumstances where a funder adheres to the ALF’s Code
Mrs Justice Knowles has delivered a robust endorsement of funding and confirmed that the significant value of the financial investment, or any profit obtained from it, has no bearing on whether a funding arrangement is champertous. She appears supportive of Sir Geoffrey Vos’s exercise of discretion in the Court of Appeal in Lloyd v Google LLC, in which he acknowledged the role that funding plays in offering a recourse to justice, commenting that the case may be costly and use valuable Court resources but preventing it from proceeding would deprive the Claimants of any remedy: “…to call Google to account for its allegedly wholesale and deliberate misuse of personal data without consent, undertaken with a view to commercial profit”. The Akhmedov Judgment also provides some thought-provoking commentary regarding the disclosure of funding agreements, which will no doubt be examined further by the Courts in the months ahead. Whilst Temur’s request for the disclosure of any funding agreement between Tatiana’s solicitors and Burford was refused as not being a document in Tatiana’s control since neither were parties to the litigation, one should perhaps consider that in a circumstance where a funding agreement is between a party and a funder then this may be disclosable.