225. Litigation funding agreements

Past version: effective from 17/12/2015 - 23/06/2020
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(1) A litigation funding agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a litigation funding agreement.
(2) For the purposes of this section a litigation funding agreement is an agreement under which —
(a) a person ("the funder") agrees to fund (in whole or in part) the provision of advocacy or litigation services (by someone other than the funder) to another person ("the litigant"); and
(b) the litigant agrees to pay a sum to the funder in specified circumstances.
(3) The following conditions are applicable to a litigation funding agreement —
(a) the funder must be a person, or a person of a description, prescribed by the Chief Justice;
(b) the agreement must be in writing;
(c) the agreement must not relate to proceedings which cannot be the subject of an enforceable conditional fee agreement or to proceedings of any such description as may be prescribed by the Chief Justice;
(d) the agreement must comply with such requirements (if any) as may be so prescribed;
(e) the sum to be paid by the litigant must consist of any costs payable to him in respect of the proceedings to which the agreement relates together with an amount calculated by reference to the funder's anticipated expenditure in funding the provision of the services; and
(f) that amount must not exceed such percentage of that anticipated expenditure as may be prescribed by the Chief Justice in relation to proceedings of the description to which the agreement relates.
(4) Rules made under subsection (3)(a) may require a person to be approved by the Board or by a prescribed person in.
(5) The requirements which the Chief Justice may prescribe under subsection (3)(d) —
(a) include requirements for the funder to have provided information to the litigant before the agreement is made; and
(b) may be different for different descriptions of litigation funding agreements.
(6) A litigant who enters into a litigation funding agreement in respect of proceedings must put every other party to the relevant dispute on written notice, in accordance with subsection (7), only of the fact that he has entered into a litigation funding agreement in respect of the relevant dispute.
(7) Written notice under subsection (6) must be given —
(a) where proceedings have yet to be commenced, as soon as practicable after the commencement of those proceedings; or
(b) where the litigation funding agreement was entered into after the commencement of proceedings, within 7 days of the date of the litigation funding agreement.
(8) In this section (and in the definitions of "advocacy services" and "litigation services" as they apply for its purposes) "proceedings" includes any sort of proceedings for resolving disputes (and not just proceedings in a Court), whether commenced or contemplated.
(9) Before making rules under this section, the Chief Justice must consult such bodies or persons as he considers appropriate.
(10) A costs order made in any proceedings may, subject (in the case of Court proceedings) to court procedure rules, include provision requiring the payment of any amount payable under a litigation funding agreement.
(11) Court procedure rules may make provision with respect to the assessment of any costs which include fees payable under a litigation funding agreement.