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Third Party Funding is governed by a unique and unparalleled legal framework in English law. That framework consists of: the recent 2014 Code of Conduct for Litigation Funders, its supervision by the Association of Litigation Funders, and sporadic judicial oversight of Litigation Funding Agreements – and with some unenacted legislation in the background for good measure. The purpose of this article is to analyse and critique this unique regulatory regime in several key respects. These include: the capital adequacy required of Funders; the key anti-champerty factors either judicially stipulated or contained within the 2014 Code; the efficacy and fairness of the so-called “Arkin cap”; the grounds upon which a Funder may legitimately withdraw funding; and the impact of recent contingency fee reforms. Overall, Third Party Funding represents an evolving and controversial landscape, both legally and politically.

In the landmark ruling of 'PACCAR Inc. and Others v. Competition Appeal Tribunal and Others (PACCAR)', the United Kingdom Supreme Court (UKSC) has introduced a significant shift in the regulatory landscape governing third-party funding (TPF) in all proceedings. The UKSC addressed the question whether litigation funding agreements (LFAs), through which funders receive a percentage of the damages recovered, constitute damages-based agreements (DBAs). The UKSC considered this question by reference to an express definition of DBAs under Section 58AA(3) of the Courts and Legal Services Act 1990 (CLSA 1990) and Section 419A of the Financial Services and Markets Act 2000 (FSMA). This determination is significant because it changes the classification of LFAs to DBAs, subjecting the non-regulated LFAs to DBA regulations. The UKSC examined whether LFAs encompass \"claims management services,\" including the \"provision of financial services or assistance.\" If these LFAs qualify as DBAs, they are unenforceable due to the statutory prohibition of DBAs for opt-out collective proceedings. The UKSC held that the LFAs in question are DBAs, rendering them unenforceable. This decision may invalidate many LFAs that were presumed not to qualify as DBAs when adopted; it has the potential to impact funding agreements for international arbitration cases and cases before the courts of other jurisdictions where English law is applicable.

While public interest litigation (‘PIL’) is on the rise, it continues to face significant funding challenges. In various sectors, financial barriers to accessing justice such as high litigation costs and a decline in public legal aid have gradually led to the development of private litigation funding mechanisms, such as third-party litigation funding (‘TPLF’). The development of TPLF primarily took place in the context of high-value commercial litigation with funders showing little interest in PIL. However, several recent PIL cases appear to have been backed by TPLF, suggesting that the TPLF market might be evolving in a new direction. Against this background, this paper explores the role that TPLF can play in enhancing access to justice in PIL. It attempts to highlight some of the obstacles that third-party litigation funders may encounter when financing PIL and focuses on two specific hurdles. First, the type of relief sought in PIL, which does not necessarily entail substantial pecuniary damages, does not align with the focus of third-party litigation funders on high-value litigation. Second, the difficulty in determining the law that is applicable to TPLF agreements may arguably affect the role of TPLF in PIL. It is indeed currently not clear whether EU courts will assess TPLF based on the law of the forum or based on the law contractually designated by the parties in the TPLF agreement. The last part of this paper explores some avenues for future research aimed at addressing these obstacles and encouraging the use of TPLF in PIL.

In the most important funding decision in 20 years, the UK Supreme Court has declared in R. (PACCAR Inc. and others) v Competition Appeal Tribunal and others [2023] UKSC 28, [2023] 1 W.L.R. 2594 that, as a matter of statutory interpretation, a third-party funder’s litigation funding agreement (LFA) is a damages-based agreement (DBA) because third-party funders are offering “claims management services”. This decision, which overturned both the earlier Divisional Court and the Competition Appeal Tribunal decisions, and long-held industry and judicial understanding, has had an immediate impact upon UK litigation. Many LFAs will require immediate re-negotiation, given their non-compliance with the DBA legislation; but for some, the ramifications are much more serious. This article traces the legislation, soft law and law reform activity which preceded this momentous event; it suggests that a key principle of statutory interpretation which governed the outcome might arguably be re-evaluated in future case law; it discusses the possibility of legislative reversal; and it predicts the ramifications of the PACCAR decision upon (especially consumer) litigation unless reversed.

While many find cause for optimism about the use of law and rights for progressive ends, the academic literature has long been skeptical that courts favor the poor. We show that, with the move toward a robust “new constitutionalism” of social and economic rights, the assumptions underlying the skepticism do not always hold. Our theories must account for variation in the elite bias of law and litigation. In particular, we need to pay closer attention to the broad, collective effects of legal mobilization, rather than focusing narrowly on the litigants and the direct benefits they receive. We support the claim by showing that litigation pursued in legal contexts that create the expectation of collective effects is more likely to avoid the potential anti-poor bias of courts. On the other hand, policy areas dominated by individual litigation and individualized effects are more likely to experience regressive outcomes. Using data on social and economic rights cases in four countries, we estimate the potential pro-poor impact of litigation by examining whether the poor are over- or under-represented among the beneficiaries of litigation. We find that the impact of courts is positive and very much pro-poor in India and South Africa, and slightly negative in Indonesia and Brazil. Overall, we challenge the tendency in the literature to focus on the direct effects of litigation, find that the results of litigation are more positive for the poor than the conventional wisdom would lead us to expect, and offer an explanation that accounts for part of the variation while raising a number of questions for future research.

Civil litigation typically ends when the parties compromise. While existing theories of settlement primarily focus on information exchange, we instead examine how motion practice, especially nondiscovery motions, can substantially shape parties' knowledge about their cases and thereby influence the timing of settlement. Using docket-level federal district court data, we find a number of strong effects regarding how motions can influence this process: including that the filing of a motion significantly speeds case settlement; that granted motions are more immediately critical to settlement timing than motions denied; and that plaintiff victories have a stronger effect than defendant victories. These results provide a uniquely detailed look at the mechanism of compromise via information exchange and motion practice in litigation while simultaneously yielding evidence that this effect goes well beyond the traditionally studied discovery process.

What role do expertise and specialization play in regulatory regimes that deploy private litigation as an enforcement tool? This question is of enormous practical importance to the optimal design of law enforcement across a range of regulatory areas, from securities and antitrust to environmental protection and civil rights. Yet it has generated surprisingly little rigorous empirical analysis. This Article begins to fill that gap by offering the first large-scale empirical study of a growing and increasingly controversial litigation regime in which debate about the role of specialized private enforcers has taken center stage: qui tam lawsuits brought under the False Claims Act (FCA). Using an original data set of more than 4,000 qui tam suits filed between 1986 and 2011, this Article tests, and mostly rejects, a pair of what might be called \"supplyside\" critiques of the regime: first, that qui tam litigation is inefficiently dominated by a growing cadre of repeat, \"professional\" plaintijf-relators and second, that qui tam's explosive growth and seeming excesses can be attributed to an increasingly specialized qui tam plaintiffs' bar. The findings demonstrate that, contrary to a chorus of critics, specialized relator-side firms appear to play a positive role in the system, enjoying higher litigation rates and surfacing larger frauds than less experienced firms. Similarly, while repeat relators win less often than one-shotters, they offset lower win rates by obtaining substantially larger recoveries when they succeed. These findings offer a much-needed empirical baseline for evaluating legal and policy debate around the FCA as well as leading proposals for its reform. More broadly, exploring the role of expertise and specialization in a specific, microinstitutional context such as qui tam is a first step to developing a thicker and more systematic account of the possibilities and limits of private enforcement of public law.

This article explains third-party dispute finance, including practical issues relating to the funding process and how to choose a funder. It examines some of the social benefits of funding and its importance in an economic downturn, and looks at some of the risks of dispute finance. It also considers the regulation of dispute finance in various Asian jurisdictions, as well as recent industry trends, including the use of dispute funding by well-resourced corporates and dispute-finance products for companies. It explains funding for insolvency-related claims and funding for the enforcement of awards and judgments. Finally, it provides two case-studies in which funding provided access to justice and enabled the funded party to recover a non-performing loan in multiple jurisdictions.

The twenty-first century \"patent litigation explosion\" is not unprecedented. In fact, the nineteenth century saw an even bigger surge of patent cases. During that era, the most prolific patent enforcers brought hundreds or even thousands of suits, dwarfing the efforts of today's leading \"trolls.\" In 1850, New York City and Philadelphia alone had ten times more patent litigation, per U.S. patent in force, than the entire United States in 2013. Even the absolute quantity of late-nineteenth-century patent cases bears comparison to the numbers filed in recent years: the Southern District of New York in 1880 would have ranked third on the list of districts with the most patent infringement suits filed in 2014 and would have headed the list as recently as 2010. This Article reveals the forgotten history of the first patent litigation explosion. It first describes the rise of large-scale patent enforcement in the middle of the nineteenth century. It then draws on new data from the archives of two leading federal courts to trace the development of patent litigation from 1840 to 1910 and to outline the scale, composition, and leading causes of the litigation boom. Finally, the Article explores the consequences of this phenomenon for the law and politics of the patent system. The effects of the litigation explosion were profound. The rise of large-scale patent assertion provides a new explanation for patent law's crucial shift from common law to equity decision making in the middle of the nineteenth century. And at its height, the litigation explosion produced a political backlash that threatened to sweep away the patent system as we know it. Recovering the history of patent law during this formative and turbulent era offers fresh perspectives on the patent reform debates of today.

For more than years, companies called \"heir hunters\" have operated in the shadows of the court system. Heir hunters monitor probate filings to identify intestate decedents who have missing or unknown relatives. They then perform genealogical research, locate the decedent's kin, and offer to inform them about their inheritance rights in exchange for a share of the property. States are sharply divided about whether to enforce contracts between heir hunters and heirs. This discord stems from the fact that we know virtually nothing about heir hunting. This Article illuminates this mysterious corner of succession law by reporting the results of the first empirical study of heir hunting. Its centerpiece is a hand-collected dataset of 1,349 recent probate matters from San Francisco County, California. The Article reaches three main conclusions. First, heir hunting is a booming business. Indeed, the Article unearths 219 agreements between heir hunters and heirs from twenty-seven American states and eleven foreign countries. Second, heir hunting can be socially valuable. Heir hunters sometimes locate long-lost relatives after everyone else has failed. Third, heir hunting is also problematic. For one, the Article's multivariate regression analysis reveals that cases with heir hunters are especially likely to devolve into litigation. In addition, heir hunters usually pay for the heir's attorney, thus creating a stark conflict of interest. Finally, heir hunters charge exorbitant fees and routinely contact heirs before the administrator has even tried to locate them. Using these insights, the Article critiques existing approaches to heir hunting and suggests reforms that would enable the legal system to harness the practice's benefits while limiting its costs.