Litigation funders often discuss the benefits of third-party funding for corporates in terms of shifting legal costs off their balance books, allowing companies to pursue beneficial litigation without incurring significant financial risks. Looking ahead to a year that will likely see corporate CFOs under financial pressure from market instability and potential recession, one funder has put forward its view on how CFOs can leverage legal finance to create value.
Rowles-Davies: Retrospective Provision in Litigation Funding Bill is ‘Fundamentally Flawed’
In an article shared on LinkedIn, Nick Rowles-Davies, founder and CEO of Lexolent, makes the case against the retrospective aspect of the UK government’s Litigation Funding Agreements (Enforceability) Bill. Whilst acknowledging that many within the industry disagree with his position, Rowles-Davies argues that ‘the Bill should be prospective only and that the retrospective element is fundamentally flawed.’
Rowles-Davies summarizes his extensive article into the following key points:
- ‘The starting point for any consideration of the Bill must be firstly to correct the various inaccurate Supporting Documents (to the Bill) such that the law as it stands, and has always stood, is properly reflected.
- The Government has put forward no credible justification to support the retrospective provision in the Bill.
- When considered under the true set of facts, this legislation appears to be incompatible with the ECHR.
- The justification for the Bill’s prospective elements and its (arguably unprecedented) retrospective aspect must be considered separately. The Supporting Documents grossly misrepresent the position. Save for pure value transfers from previously funded parties to existing funders, what the Bill properly seeks to achieve can be accomplished through prospective only legislation.
- If retrospectivity survives, it is likely that the matter will come before the courts quickly thereafter in relation to the ECHR.’
Rowles-Davies argues in the article that ‘the Supporting Documents to the LFA Bill provide absolutely no evidence of legal precedent to support the retrospective aspect of the Bill.” He goes on to say that not only is this bill ‘unprecedented’, but it also fails to provide ‘credible “public interest” justification for the retrospective aspect.’
In the conclusion of the article, Rowles-Davies calls on both chambers of Parliament to ‘take proper time to explore the foundation upon which the Bill rests and then test its contents after it has been repaired.’ Furthermore, he argues that ‘the positioning of the Bill is disrespectful to a busy Parliament tasked with addressing far more pressing global, social, and public interest matters.’