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      Formal regulation of third party litigation funding agreements? A South African perspective

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          Abstract

          In South Africa third party litigation funding agreement as a tool that provides access to justice is not legislated with regard to non-lawyers. This article is based on research conducted to determine whether regulating this type of agreement would facilitate in fostering the policy that favours access to justice. A brief comparative study showed that English law permits third party litigation funding agreements in the Courts and Legal Services Act 1990. However, unlike in South African law, English law also has a body that regulates the conclusion of third party litigation funding agreements. The Association of Litigation Funders introduced a voluntary Code of Conduct for Litigation Funders in 2011 and an updated one in 2016, which regulates the conclusion of third party litigation funding agreements. The Code of Conduct protects the litigant against abuse by the funder and the funder against non-compliance by the litigant. Despite being a "self-regulatory" legislative initiative that governs most of the funding agreements in England, this Code does not bind non-members of the Association. In South Africa there is no such voluntary regulation of third party litigation funding agreements. Consequently, litigants may be prejudiced by the litigation funder in instances where a funder receives a disproportionate percentage of the capital award. The study on which this article draws investigated whether there is a need for an effective legislative response that regulates third party litigation funding agreements in South Africa. It was found that there is a need for formal regulation with regard to third party litigation funding agreements because there are no clear guidelines on the conclusion of the agreements in South Africa.

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          Most cited references9

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          "Neville v London Express Newspaper Ltd [1919] AC 368" 1919

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            "Door Closed on Common Law Contingency Fees" 2013

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              "Access to Justice: To Dream the Impossible Dream?" 2011

              E. Hurter (2024)
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                Author and article information

                Contributors
                Role: ND
                Journal
                pelj
                PER: Potchefstroomse Elektroniese Regsblad
                PER
                North-West University (Potchefstroom Campus) (Potchefstroom, North-West Province, South Africa )
                1727-3781
                2018
                : 21
                : 1
                : 1-22
                Affiliations
                [01] orgnameUniversity of South Africa
                Article
                S1727-37812018000100036
                10.17159/1727-3781/2018/v21i0a3434
                e6c6211d-8c7c-4eb6-a28d-35d42c612f43

                This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

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                Page count
                Figures: 0, Tables: 0, Equations: 0, References: 23, Pages: 22
                Product

                SciELO South Africa

                Categories
                Articles

                third party litigation funding agreements,public policy,pactum de quota litis,non-lawyers,maintenance,champerty,Access to justice

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