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Third-Party Funding: Trends, Developments and the Future

The team of the Vici project ‘Affordable Access to Justice’ at Erasmus School of Law, Erasmus University (Rotterdam), have organised an online research seminar ‘Third Party Funding: Trends, Developments and the Future.’ This seminar will take place on 7 December 2022 at 10-13 CET via Zoom.

The seminar will include two presentations on two of the articles in the recently published special issue of Erasmus Law Review, edited by Vici members Professor Xandra Kramer (Erasmus School of Law) and Associate Professor Masood Ahmed (University of Leicester, UK) on Global Developments and Challenges in Costs and Funding of Civil Justice. Dr David Capper (Queen’s University, Belfast) and Professor Michale Legg (UNSW, Sydney) will present their respective papers on third party funding in Australia and Ireland.

This seminar will start with the launch of the new book Frontiers in Civil Justice - Privatisation, Monetisation and Digitisation (Elgar 2022); an edited collection of essays from the ERC project Building EU Civil Justice. The book studies three interrelated frontiers in civil justice from a European and national perspectives, combining theory with policy and insights from practice: the interplay between private and public justice, the digitisation of justice, and litigation funding. These current topics are viewed against the backdrop of the requirements of effective access to justice and the overall goal of establishing a sustainable civil justice system in Europe.

Event program:

Title: Third Party Funding: Trends, Developments and the Future

9.45 – 10.00: Registration / Zoom Connection

10.00 - 10.15: Xandra Kramer and Stefaan Voet (Erasmus School of Law, KU Leuven):

Welcome, Introduction and Book Launch Frontiers in Civil Justice - Privatisation, Monetisation and Digitisation

10.15 - 10.30: Masood Ahmed (University of Leicester, UK)

Introduction and background on the special issue of Erasmus Law Review Global Developments and Challenges in Costs and Funding of Civil Justice

10.30 – 10.45: Adrian Cordina (Erasmus School of Law)

Introduction on TPF in Europe and beyond

10.45 - 11.15: Michael Legg (UNSW Sydney)

The Rise and Regulation of Litigation Funding in Australian Class Actions

11.15 - 11.30: Break

11.30 – 12.00: David Capper (Queen’s University Belfast)

Litigation Funding in Ireland

12.00 - 12.15: Discussion and Conclusion of the Seminar

Speakers’ bio:

Michael Legg

Michael Legg is a Professor in the Faculty of Law & Justice at the University of New South Wales, Sydney, Australia. Michael’s research interests include case management of complex civil litigation, regulatory litigation, class actions and litigation funding. He is the author of Case Management and Complex Civil Litigation (2d ed, 2022) published by Federation Press and Public and Private Enforcement of Securities Laws - The Regulator and the Class Action in Australia’s Continuous Disclosure Regime published by Hart (2022), co-author of Corporate Misconduct and White-Collar Crime in Australia (Thomson Reuters, 2022), Civil Procedure in New South Wales (Thomson Reuters, 4th ed 2020) and Australian Annotated Class Actions Legislation (LexisNexis, 2d ed 2018). Michael is a Fellow of the Australian Academy of Law, a member of the Law Society of New South Wales’ Future Committee and the Law Council of Australia’s Class Actions Committee. He is admitted to practice in Australia (NSW) and the United States (New York Bar). He holds law degrees from UNSW (LLB), the University of California, Berkeley (LLM) and the University of Melbourne (PhD).

David Capper

Dr David Capper studied Law at Queen’s University Belfast and Cambridge University from 1978 to 1984. He was a practising member of the Bar of Northern Ireland from 1984 until 1989 when he was appointed to a Lectureship in Law at Queen’s. He is now Reader in Law, teaching and writing in the fields of Private Law, Civil Procedure and Remedies. He has held visiting positions at the University of Detroit Mercy and Fordham University.

Dr Capper first became interested in access to justice and the funding of civil litigation when serving as member (1995-2001) and vice-chair (1997-2001) of the Lord Chancellor’s Legal Aid Advisory Committee for Northern Ireland. He is the sole author of two books, on Mareva Injunctions and the Enforcement of judgments in Northern Ireland, respectively, as well as around 50 law review publications. Currently he is co-editor of the Northern Ireland Legal Quarterly.

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EU flag ERC logo

“The history of liberty has largely been the history of the observance of procedural safeguards” - Felix Frankfurter, in McNabb v. United States, 318 U.S. 332 (1943)

The design of the ERC and Vici projects is inspired by the idea that procedure matters (inaugural lecture, 2012). How can we secure fundamental rights and the quality of the justice system while – realising that resources are limited and society is in constant flux – looking for procedural innovations that meet the need for economic efficiency and effectiveness? Driving forces are concerns for the equality in accessing justice, securing transparency, technological advancement, the human aspect, facilitating economic activity, the sustainability of our civil justice systems and the impact of civil justice on society.

Below follows a further description first of the ERC project and then of the Vici project.

ERC project: Building EU civil justice

Challenges of procedural innovations - bridging access to justice

Access to civil justice is of paramount importance for enforcing the rights of consumers and businesses and protecting fundamental rights. Key issues in the current efforts to improve access to justice at the EU and national level are the digitisation of procedures (including the use of AI), the privatisation of justice (ADR), increasing self-representation, and court specialisation. We investigate how these trends influence access to justice in selected, representative Member States, and what the repercussions are for the emerging EU civil justice system. Five jurisdictions identified for this project are Germany, Italy, the Netherlands, Romania, and the United Kingdom (England and Wales). However, we also are keen to broaden our horizons and to look beyond these five countries and outside of Europe. We combine legal-normative and comparative law research with empirical research, which helps us in testing and revising our ideas. This research is conducted by an international team of seven researchers who share a passion for research, teaching and civil justice, who enjoy an international and multidisciplinary approach and working environment, embrace new ideas, are independent thinkers and invigorate each other. The project is fully financed by the European Research Council under its ERC Consolidator scheme (ERC-Consolidator Grant n° 726032). The project runs from 1 September 2017 till 1 September 2022.

Outline subprojects

Subproject 1a: Digitisation (Erlis Themeli)

This subproject focuses on the digitisation of civil procedure and the conduct of court proceedings in the context of access to justice. Focal points are digital access to procedures and the use of artificial intellegence in decision making. It consists of normative, comparative and empirical research and aims at developing a normative framework for accessible civil procedures that meet the demands of procedural justice.

Subproject 1b: ODR (Emma van Gelder)

This PhD project focuses on the implementation and the functioning of out-of-court dispute resolutio mechanisms and the ODR Regulation in selected Member States with a view to improving access to justice. It is also closely connected to subproject 2 on ADR. The PhD project is co-supervised by Prof. dr. Stefaan Voet (Leuven University).

Subproject 2: Privatisation (ADR) (Betül Kas/Alexandre Biard)

This postdoc project studies the privatisation of justice (in particular consumer ADR) in the EU and the selected Member States in particular. It gives a critical appraisal of the gains for and threats to access to justice and the judicial system as a whole on the basis of normative, comparative, and empirical research. It will provide a framework and define the parameters for further development of a sustainable ADR mechanism.

Subproject 3: Self-representation (Jos Hoevenaars)

This postdoc project will scrutinise the self-representation trend against the background of access to justice. On the basis of normative, comparative and substantial (primarily qualitative) empirical research, it will assess the developments in self-representation, evaluate how self-representation changes procedural dynamics between courts and parties as well as the repercussions for the effectiveness of litigation and procedural justice as components of access to justice.

Subproject 4: Court specialisation (Georgia Antonopoulou)

This PhD project investigates the court specialisation trend focusing on international business courts in selected Member States, taking account of international commercial courts outside Europe and the parallels with commercial arbitration. On the basis of desk and field research it will assess the contribution of specialisation to access to justice and give recommendations. This PhD project is co-supervised by Prof. Eddy Bauw (Utrecht University).

Vici project: Affordable Access to Justice

Towards sustainable cost and funding mechanisms for civil litigation in Europe

At the heart of effective access to civil justice lies litigation funding and cost management. Access to civil justice has been under pressure due to retrenching governments, high costs, and procedural inefficiency. The Vici project will assess new pathways to civil justice funding and cost schemes, with a view to developing a balanced financing system, thereby securing access to justice in Europe. Combining legal-normative, comparative law, and empirical research, the project will (1) analyse the development of private funding and cost mechanisms in selected European jurisdictions (where three key jurisdictions are the United Kingdom (England and Wales), Germany and the Netherlands, while Scandinavian countries are also of interest); (2) scrutinise these against the background of securing access to justice as a fundamental right; and (3) devise a framework for funding and cost rules, contributing to a sustainable European civil justice system. The Vici project financed by the Dutch Research Council (NWO) consists of seven researchers with different backgrounds. It kicked off on 1 December 2020 and in January 2021 our team was complete. It complements and builds on the ERC consolidator project Building EU Civil Justice: challenges of procedural innovations - bridging access to justice (2017-2022).

Our Vici project is also on ResearchGate.

Outline subprojects

Subproject 1a: From public to private funding (Carlota Ucín)

This postdoc project deals with the shift from public to private funding of access to justice and considers, in particular, the normative basis for building a sustainable mechanism for European civil justice. From the understanding of access to justice as a human right, it enquires not only on cost matters but also on the relevance of public interest litigation as a way of achieving effective access to justice. This subproject is developed through three main lines: a) the first one deals with the concept of duties related to access to justice and the role of States and private actors; b) the second line goes to the field and will explore the compared solutions in the implementation of Third-Party Funding (TPF), in particular, crowdfunding and public interest litigation and c) the last stage aims to elaborate a balanced financed system for Europe that encounters the findings of the previous stages. This implies considering the new role of States in the post-welfare State but also the responsibilities of private actors when they get profit in a public arena.

Subproject 1b: Funding and who decides? (Adrian Cordina)

As cost and funding have economic implications, this subproject will view TPF from a law and economics perspective, complementing the other subprojects. Although different cost and funding mechanisms have received attention in law and economics, the models to predict behaviour are abstracted from the legal framework of a particular country, or are geared to the United States (US) legal system. This PhD project willy apply models in selected European jurisdictions, resulting in more concrete predictions on outcomes and behaviour or in strengthening the institutional embeddedness of the models. This PhD project is co-supervised by Prof. Louis Visscher.

Subproject 1c: Crowdfunding civil justice (Eduardo Silva de Freitas)

Web-based crowdfunding emerged around fifteen years ago to finance projects, for instance art projects. Crowd litigation funding (CLF) is an emerging way to finance litigation through platforms such as Funded Justice (US), CrowdJustice (United Kingdom), and Rechtspraak.nu (the Netherlands). This PhD project will investigate the CLF market, the legal framing, its use and the potential for civil litigation and provide a framework. This PhD project is co-supervised by Dr. Eva Storskrubb.

Subproject 2: Cost mechanisms (Adriani Dori)

The need for funding as described in the first strand corresponds to the high costs incurred in litigation. This second strand studies these cost categories, and questions established and new mechanisms designed to control and reduce the costs. This subproject will identify in detail the most important costs in civil litigation, and evaluate how these affect access to justice. This will also aid the first strand of the project. It will then map the various reforms and techniques aimed at reducing and allocating the costs, and will analyse and compare their effects. The subproject will provide a normative and empirical underpinning for the various cost rules, and give recommendations on the mix of measures to keep justice affordable.