Financing Litigation Legal Research Project Update


5 February 2016

By Elizabeth Pinsent

“Access to justice” continues to be a hot-button issue across Canada. It is a high-priority topic not only for the Canadian Bar Association, provincial Law Societies, and Law Foundations – but for everyday people who find themselves faced with a legal system that often appears unapproachable.

With funding from the Law Foundation of British Columbia, BCLI has started a project devoted to examining the different ways individuals can hire lawyers. As research by University of Windsor Faculty of Law professor Dr. Julie Macfarlane has found, by far the most consistently cited reason for self-representation was the inability to hire or retain a lawyer. This project builds upon that premise, examining a myriad of new, upcoming, and unconventional ways to hire lawyers for cost-effective representation, rather than relying on the traditional means of finance which remain out of reach for many people.

For example, the project will examine recent developments in the field of third-party litigation financing – where the plaintiff hires a third-party to litigate a case for them, and the third-party is paid a portion of any settlement or award obtained. While similar to traditional contingency fee agreements, third-party litigation financing helps ensure adequate representation thanks to the third-party in the middle who retains representation on the plaintiff’s behalf, liaises with counsel, and protects the interests of all the parties to make sure the case flows smoothly.

Other promising options include:

  • publicly-funded litigation funds, particularly for cases in the public interest like class action liability cases, or human rights cases;
  • crowdfunded litigation financing, such as what is currently being used by Laura Miller, the former deputy chief of staff to then-Ontario Premier Dalton McGuinty, to raise funds for her defence in criminal allegations relating to an infamous gas plant scandal in Ontario;
  • legal insurance, which would indemnify plaintiffs and defendants against legal costs in return for paying monthly or annual premiums;
  • unbundled legal services, which would allow individuals to hire lawyers for discrete contracts on specific parts of their case (such as drafting pleadings, assisting with mediation, or court representation), rather than their doing their entire case from start to finish

As the Financing Litigation Project gets underway, the first consultations with experts are set to begin later this month. In small consultation groups with experts and stakeholders, BCLI aims to publish a thorough Study Paper examining the advantages and disadvantages of the above-mentioned issues (and any others which may arise), and highlight any obstacles to their implementation that would need to be reformed in order to improve access to justice.

 


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