Law360, London: A recent High Court decision that unqualified employees of law firms are prohibited from conducting litigation has caused 'major fear' among lawyers and created uncertainty about firms' profitability, the training of new talent, access to justice and even the use of artificial intelligence in legal practice.

A person who acts on behalf of a minor or protected party during legal proceedings.

PI & Clinical Negligence analysis: Since the abolition of additional liabilities as part of the Jackson reforms in 2013, there has been an increased focus on the entitlement of legal representatives to recover from their clients sums due by way of: (i) success fee; (ii) ATE and (iii) shortfall between the costs charged and costs recovered. So far as children and protected parties are concerned, that has resulted in a Practice Note as regards deductions from damages from the Senior Costs Judge. The refusal of some District Judges to allow expenses to litigation friends under CPR 21.12 was of sufficient concern to one firm of solicitors that they took the matter to appeal—an unusual but necessary step in circumstances in which the issue was, effectively, between the litigation friend and the judge, as opposed to between the parties. Written by Paul Hughes, barrister at Kings Chambers.

This Practice Note considers when a litigation friend or an accredited legal representative (ALR) or other representative (known collectively as Rule 1.2 representatives) is required in Court of Protection proceedings and who may act as a litigation friend or a Rule 1.2 representative. It also sets out the respective rules relating to the appointment and removal of litigation friends and Rule 1.2 representatives in the Court of Protection. Reference is made throughout to the relevant parts of the Court of Protection Rules 2017 (COPR 2017) and the Court of Protection Practice Direction 17A—Litigation friend (PD 17A) and Practice Direction 17B—Rule 1.2 representatives (PD 17B). For proceedings in the county court and High Court, reference should be made to the Civil Procedure Rules 1998, Pt 21—Children and Protected Parties. Representation and participation of P in Court of Protection proceedings Section 4(4) of the Mental Capacity Act 2005 (MCA 2005) requires a decision maker to permit and encourage P to participate as fully as is reasonably practicable in any act done for them or

Family analysis: This is the latest decision in a long-running financial remedy case, in which the litigation funder Integro Funding Ltd (‘Level’) has intervened. The husband appealed an order which granted party status to Level at a full rehearing of the parties’ financial remedy claims. Level had applied to set aside the parties’ consent order because the terms agreed would deprive them of the ability to recoup their loan to the wife. The husband argued inter alia that litigation funders should not be in a better position than any other unsecured third-party creditor in the context of financial remedy claims upon divorce. The husband’s appeal was dismissed on all grounds except: the judge should not have made provision for full financial remedy proceedings at this stage, but should only have listed a discrete hearing to consider whether or not to approve and remake the consent order, and Level’s separate civil claim should not have been transferred to the Family Court. Level therefore remains a party to the reconsideration of the consent order. On the key point of principle, the Court of Appeal held that litigation funders are in a different category to other unsecured lenders, for reasons of public policy. Jennifer Perrins, barrister at 1 King’s Bench Walk, examines the issues.

Law360: The Civil Justice Council announced on 23 April 2024 that it has launched a review into third-party civil litigation funding that will consider whether to regulate the sector, cap fees and investigate conflicts of interest between funders and litigants.

While each litigation funding agreement (LFA) and its associated documents will vary depending on the funder and the specificities of the funded matter, there exist key issues that need to be addressed in the various negotiation phases. This Practice Note is one in a series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, aiming to provide for those involved in negotiating and considering LFAs and their associated documents a better understanding of the factors at play. Adverse costs risks for funders Solicitors will always advise their clients of the risks of any adverse costs in case of unsuccessful litigation. The birth of the after-the-event insurance (ATE) market gave litigants the option of being able to protect against such risks if an insurer felt the prospects were sufficiently strong enough to offer such insurance coverage. While ATE cover can provide protection against the risk of any adverse costs order, it only covers up to the limit

While each litigation funding agreement (LFA) and its associated documents will vary depending on the funder and the specificities of the funded matter, there exist key issues that need to be addressed in the various negotiation phases. This Practice Note is one in a series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, aiming to provide for those involved in negotiating and considering LFAs and their associated documents a better understanding of the factors at play. Change of legal teams Solicitor and counsel replacement clauses cause concern for both the litigant and solicitor when negotiating an LFA. However, these are not clauses that a funder should ever have to rely on, especially given that any such replacement comes at considerable risk and expense to the investment. Triggers Similar to many other terms of last resort, the inclusion of these replacement clauses is necessary to cover unexpected changes in circumstances, none of which are envisaged or

While each litigation funding agreement (LFA) and its associated documents will vary depending on the funder and the specificities of the funded matter, there exist key issues that need to be addressed in the various negotiation phases. This Practice Note is one in a series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, aiming to provide for those involved in negotiating and considering LFAs and their associated documents a better understanding of the factors at play. Co-funding As the market has evolved and funding budgets increased due to inflationary pressures, it has become increasingly common for funders to share the investment risk in any given case with another or several others. Some funders will commit to the entire LFA but subsequently novate or sell sub-participation rights over a portion of their risk to other funders or investors. In this scenario, the main funder will remain the only funder for the purpose of the LFA with other funders taking a

While each litigation funding agreement (LFA) and its associated documents will vary depending on the funder and the specificities of the funded matter, there exist key issues that need to be addressed in the various negotiation phases. This Practice Note is one in a series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, aiming to provide for those involved in negotiating and considering LFAs and their associated documents a better understanding of the factors at play. Control The extent to which a funder’s involvement in any funded case translates to control is a common concern highlighted by stakeholders considering litigation funding. While funders should not be controlling a funded claim, control can be dealt with by a clause explicitly stating that the litigant retains sole conduct of the case. There are, however, some nuances to any such clause that one should be aware of when negotiating an LFA. Useful context In Akhmedova v Akhmedov, a high-profile

While each litigation funding agreement (LFA) and its associated documents will vary depending on the funder and the specificities of the funded matter, there exist key issues that need to be addressed in the various negotiation phases. This Practice Note is one in a series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, aiming to provide for those involved in negotiating and considering LFAs and their associated documents a better understanding of the factors at play. Dispute resolution The dispute resolution clause of any commercial agreement is one that no party ever intends to fall back on. In the litigation funding industry, most disputes surrounding the LFA tend to be resolved among the parties themselves. Accordingly, it is all too easy to fall back on a standard submission ‘to the exclusive jurisdiction of the courts of England and Wales’, or whatever alternative is standard among the parties. Submitting to the courts is often impractical, especially where a dispute

While each litigation funding agreement (LFA) and its associated documents will vary depending on the funder and the specificities of the funded matter, there exist key issues that need to be addressed in the various negotiation phases of all litigation funding documentation. This Practice Note is one in a series of short Practice Notes by Tanya Lansky and Tets Ishikawa, Managing Directors of LionFish Group Ltd, aiming to provide for those involved in negotiating and considering LFAs and their associated documents a better understanding of the factors at play. Overriding objective Dealing with drawdown processes is an administrative, often non-billed, task that can frequently be forgotten. However, a clear drawdown process can save a huge amount of time, costs and resources for all parties throughout the life of a LFA. The overriding objective with any drawdown process is to avoid ambiguity and minimise discretion. Setting out the agreed drawdown mechanics—which does not necessarily entail a rigid process—helps avoid ambiguity, and afford predictability and necessary flexibility.