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Tuil, Mark; Visscher, Louis --- "Introduction" [2010] ELECD 849; in Tuil, Mark; Visscher, Louis (eds), "New Trends in Financing Civil Litigation in Europe" (Edward Elgar Publishing, 2010)

Book Title: New Trends in Financing Civil Litigation in Europe

Editor(s): Tuil, Mark; Visscher, Louis

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446854

Section: Chapter 1

Section Title: Introduction

Author(s): Tuil, Mark; Visscher, Louis

Number of pages: 6

Extract:

1. Introduction
Mark Tuil and Louis Visscher

1. THE PROBLEM OF FINANCING CIVIL
LITIGATION

Due to several factors not every meritorious claim is brought to justice.
One of these factors is the costs that need to be incurred, which might
be too high to make the claim feasible in practice. Such barriers to the
effectuation of a claim are problematic for the following reasons: firstly,
they effectively frustrate access to justice; secondly, civil litigation is the
driving force behind private enforcement; and thirdly, the behavioural
incentives that actors may derive from the legal rules are reduced by the
financing problem. Traditionally this funding problem is overcome in part
by government-subsidized legal aid. However, the budget available for
legal aid in most European countries and indeed worldwide is limited and
is under threat of reduction.
Many techniques other than government subsidized legal aid may also
overcome the aforementioned problem. Parties can buy legal expense
insurance, both `before-the-event' and `after-the-event'. Result-based fees
for lawyers such as contingency fees and conditional fee arrangements
enable plaintiffs to initiate a claim without bearing a financial risk.
Collectivization of claims into class actions, collective actions, and/or
representative actions might substantially decrease the costs per plaintiff.
Cost shifting arrangements exist, such as the English Rule or the inclusion
of extra-judicial costs in the determination of damages. Finally, several
`market solutions' can be distinguished, such as the Cartel Damage Claims
(CDC) whereby victims of antitrust law infringements can sell their ...