Litigation Funding

Civil Justice Council review of litigation funding

The Civil Justice Council is pleased to establish this review at the request of the Lord Chancellor. We also welcome discussion of this work in Parliament during the passage of the Litigation Funding Agreements (Enforceability) Bill.

The working group will look to provide a full report by summer 2025.

The CJC’s function to help make civil justice more accessible, fair, and efficient is at the heart of our work. This review will set out the current position of litigation funding, including that of third-party funding, and will consider access to justice, its effectiveness, and regulatory options. We will, where necessary, make recommendations for change.

The full terms of reference are set out below.

Interim Report and Consultation

The Council’s Litigation Funding Working Group, which is co-chaired by Dr John Sorabji and Mr Justice Simon Picken, published an interim report and consultation on 31 October 2024.

The Working Group is not making any recommendations at this stage.

Sir Geoffrey Vos, Master of the Rolls, Head of Civil Justice and Chair of the CJC, said: “I welcome the publication of the CJC’s interim report and consultation on litigation funding. Litigation funding plays an important role in ensuring access to justice. I am grateful to co-chairs Dr John Sorabji and Mr Justice Simon Picken, and their working group for this report. I encourage all interested parties to read the report and respond to the consultation, which will run until Friday 31 January 2025. I look forward to the publication of the Working Group’s final report in summer 2025.

“It is a busy and exciting time for the CJC, which is also conducting a review of the Solicitors Act 1974, through a working group chaired by Mr Justice Adam Johnson. The CJC understands that there will be areas of overlap between the work of that group and the Litigation Funding Group. It will create valuable consistency and coherence for the Solicitors Act Working Group to be able to take account of the responses to this Consultation by the Litigation Funding Group as they take forward their work in the new year.”

The consultation will close on Friday 31 January 2025 at 23:59.

The full list of consultation questions and cover sheet are available here.

Consultees do not need to answer all questions if only some are of interest or relevance.

Answers should be submitted by PDF or word document to CJCLitigationFundingReview@judiciary.uk. If you have any questions about the consultation or submission process, please contact CJC@judiciary.uk.

Please name your submission as follows: ‘name/organisation – CJC Review of Litigation Funding’

Respondents must complete and submit the cover sheet with their response.

Working Group (reporting to the full Council)

Mr Justice Simon Picken (CJC member) – co-Chair
Dr John Sorabji (CJC member) – co-Chair
Mrs Justice Sara Cockerill
Prof. Chris Hodges – Regulatory Horizons Council
Lucy Castledine – Financial Conduct Authority
Nick Bacon KC

The working group may additionally look to co-opt a consumer representative, and solicitor with expertise in group litigation.

Consultation Group

A wider consultation group has also been convened to directly inform the work of the review and to provide a larger forum for discussion in support of the working group.

Current membership of the consultation group is as follows:

Alistair Kinley (Clyde & Co.)
Andrew Higgins (Civil Justice Council member)
Dr Mark Friston (The Bar Council)
Jackie Griffiths (Solicitors Regulation Authority)
Jamie Molloy (Ignite Speciality Risk)
Jenny Morrissey (The Law Society)
Julian Chamberlayne (Stewarts)
Kenny Henderson (Fair Civil Justice)
Lucy Anderson, Consumers’ Association (Which?)
Neil Purslow (International Legal Finance Association)
Prof. Neil Rickman (University of Surrey)
Nicola Critchley (Civil Justice Council member)
Prof. Rachael Mulheron (Queen Mary University)
Rhea Gupta (Class Representatives Network)
Stephen Wisking (Herbert Smith Freehills)
Suganya Suriyakumaran (Legal Services Board)
Susan Dunn (Association of Litigation Funders)
Tajinder Bhamra (Ministry of Justice)
Tom Steindler (Exton Advisors)

The membership of the consultation group is now set for the first phase of the work, until the end of the upcoming consultation phase. Membership of the committee will be reviewed by the Council’s Executive Committee following the first round of public consultation. If you would still be interested in supporting this work as a member of the consultation group, and would like to be considered as part of that membership review, please indicate your interest and provide details of the expertise or perspective that you are able to contribute to cjc@judiciary.uk. It would be helpful if expressions of interest could be brief (no more than 500 words). There is no need to apply again if you have previously indicated your interest.

The CJC will also continue to welcome views from beyond the consultation group. The upcoming interim report will facilitate opportunities for wider engagement, and contributions to this review from all perspectives will be very welcome. The CJC remains committed in all of its work to finding consensus where possible and allowing the full balance of views to be heard and taken into account where not.

To stay updated on the work of this group and that of the Council as a whole, please do sign up to our mailing list.

Terms of Reference

The CJC will look to provide an interim report by summer 2024, and a full report by summer 2025.

The Review will be based on the CJC’s function to make civil justice more accessible, fair, and efficient.

The reports will be published.

The reports will provide advice to the Lord Chancellor and, where considered appropriate by the CJC, will make recommendations for change.

The interim report will facilitate opportunity for wider engagement with the CJC, and this review, either through consultation, provision of evidence, or otherwise.

The scope of the review at its outset is as follows (but may be subject to necessary variation):

To set out the current position of litigation funding and third party funding (TPF)

TPF is currently subject to self-regulation. The review will consider:

The background to TPF’s development in England and Wales, with particular reference to the development of the current self-regulatory approach and the effect of the Jackson Costs Review (2009);
The current position concerning self-regulation;
Approaches to the regulation of TPF in other jurisdictions;
How TPF is located within the broader context of funding options.

To consider access to justice, effectiveness, regulatory options

This work will explore whether the current arrangements for TPF deliver effective access to justice and identify possible alternatives and limitations.

To make recommendations

Set out clear recommendations for reform. This will include consideration of:

As to whether and how and, if required, by whom, TPF should be regulated.
As to whether and, if so, to what extent a funder’s return on any TPF agreement should be subject to a cap;
How TPF should be best deployed relative to other sources of funding, including but not limited to; legal expenses insurance, and crowd funding;
As to the role that rules of court, and the court itself, may play in controlling the conduct of litigation supported by TPF, or similar funding arrangements, including whether and, if so, what provision needs to be made for the protection of claimants whose litigation is funded; and the interaction between pre-action and post-commencement funding of disputes;
The relationship between TPF and litigation costs;
Duties concerning the provision of TPF, including potential conflicts of interest between funders, legal representatives and funded litigants;
As to whether funding encourages specific litigation behaviour such as collective action.