Litigation Funding following PACCAR Inc - Where Are We Now?

Introduction

The Supreme Court’s decision R (on the application of PACCAR Inc and others) v Competition Appeal Tribunal and others [2023], has had the single most catastrophic implication in litigation funding of any other court decision. The Supreme Court, by a majority, decided that a litigation funding agreement (‘LFA’) under which the funder is to receive a percentage of any damages recovered by the funded party, is a damages-based agreement (‘DBA’) within the meaning of s58AA of the Courts and Legal Services Act 1990. This decision renders all such funding arrangements unenforceable.

The Government, realising the calamity of the situation has taken uncommonly swift action to remedy the situation through legislation.

This webinar will examine the facts of the Supreme Court case, the reasoning of the decision, the potential implications for existing and future funded cases, what the proposed legislation now proposes and what the future now has in store for litigation funding.

What You Will Learn

This webinar will cover the following:

• How LFAs were previously viewed, especially by Lord Justice Jackson in his reforms and why this decision is at odds with the draft Damages Based Agreements Regulations 2019, which the government failed to introduce
• The analysis and decision by the majority and examining the lengthy dissenting decision given by Lady Rose
• How the calculation of the funders reward in the LFA is critical
• Is this decision retrospective and what should you do about existing LFAs in cases yet to be resolved?
• How to approach the drafting of LFAs in the future to avoid serious issues
• Will this decision change a funder’s approach and appetite to support litigation?
• What the Government’s Litigation Funding Agreements (Enforceability) Bill 2024 proposes and what this means in practice if this Bill is passed
• Proposals for the future review of Litigation Funding

This webinar was recorded on 9th October 2024

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