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Author : Mpho Justice Khoza

Affiliation: University of South Africa

Email: khozamjay@gmail.com

Date of submission: 31 October 2017

Date published: 4 July 2018

Editor Dr G Viljoen

How to cite this article

Khoza MJ "Formal Regulation of Third Party Litigation Funding Agreements? A South African Perspective "PER / PELJ 2018(21) - DOI http://dx.doi.org/10.17159/1727-3781/2018/v21i0a3434

Copyright

DOI http://dx.doi.org/10.17159/1727-3781/2018/v21i0a3434

Abstract

Keywords

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

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1 Introduction

Third party litigation funding agreements are defined as those agreements in terms of which a person (a non-lawyer funder or a layman) provides a litigant with funds to prosecute an action in return for a share of the proceeds of the legal action if the litigation is successful.1 In South Africa the other known third party litigation funding agreements that are regulated are the contingency fee agreements. This kind of agreement is between a practising lawyer and a litigant, whereby a legal practitioner and the litigant agree on the payment of the legal fees only upon the achievement of success in the legal proceedings.2 The contingency fee agreements are a sub-species of third party litigation funding agreements and are regulated by the Contingency Fees Act 66 of 1997. Contingency fee agreements can be defined as agreements whereby a legal practitioner and the litigant agree on the payment of the legal fees only upon the achievement of success in the legal proceedings.3 (It is thus a "no success, no fee" agreement.)4 This article will discuss the regulation of third party litigation funding agreements as they apply to non-lawyer funders which are unregulated by the Contingency Fees Act 66 of 1997.

In English law, contingency fee agreements as known in South Africa are known as conditional fee agreements.5 Just like third party litigation funding agreements, the Courts and Legal Services Act regulate the other funding agreements that are utilised by lawyers, which are conditional fee agreements and damages-based agreements.6 Also, in English law maintenance and champerty are terms associated with agreements which may contravene public policy as encouraging speculative litigation.7 For the purposes of this article, the meaning of maintenance is limited to "the procurement or assignment, by direct or indirect financial assistance of

another person to institute, carry on or defend civil proceedings without lawful justification."8 Champerty is defined as "the support of litigation by a stranger in return for a share of the proceeds of the action."9 Both of these agreements were considered to be contrary to public policy.10

Third party litigation funding agreements have been debated for centuries, especially regarding their legality. It is with the constant shift of attitudes that these agreements are now part of a policy that guarantees access to justice. Most of the common law jurisdictions allow financial assistance to be given to litigants by third party litigation funders with the condition that should the litigant succeed in the funded litigation the funder would deduct a certain specified percentage from the capital amount awarded to the litigant.

However, in South Africa there is no legislation governing third party litigation funding agreements for non-lawyers. The Supreme Court of Appeal in Price Waterhouse Coopers Inc v National Potato Co-Operative Ltd11 watered down the prohibition of third party litigation funding agreements for non-lawyers after being encouraged to do so by the legislature's regulation of contingency fee agreements through the Contingency Fees Act.12 There thus seems to be limited academic literature available on third party litigation funding in South Africa. There has been no attempt by the legislature to formulate formal legislation dealing with third party litigation funding. In most constitutionally governed jurisdictions13 it seems to be the commonly held position that access to justice will be strengthened if new forms of funding litigation are permitted to provide litigants with the possibility of pursuing their claims.14 In South Africa the right to access to justice is enshrined in section 34 of the Constitution of the Republic of South Africa, 1996.

This article poses two main questions: firstly, whether the non-regulation of third party litigation in South Africa is appropriate, as the industry is still growing; and secondly, what the implications of regulating third party litigation funding might be for both the litigant and the defendant. These questions are answered by considering the purpose and implications of self-regulation by litigation funders and the government regulation of third party

litigation. The position in foreign jurisdiction is taken into consideration as it has persuasive force regarding the regulation of third party litigation funding agreements.15 Specific comparison will be made between South African and English law.

This article contributes towards the development of a model that is better suited to address the pitfalls of third party litigation funding agreements. Part two of the article provides a brief historical overview of third party litigation funding agreements. Part three provides a discussion of third party litigation funding agreements in South Africa. Part four of the article compares the South African law position with the English law position regarding the regulation of third party litigation funding agreements. Recommendations are made and conclusions are drawn made in parts five and six of the article.

2 A historical overview of third party litigation funding agreements

South Africa has a mixed legal system consisting of Roman, Roman-Dutch and English law, which greatly influenced the development of third party litigation funding agreements. In Roman and Roman-Dutch law third party litigation funding agreements are known as pactum de quota litis. In terms of these agreements one party undertakes to provide funds for litigation by the other party in exchange for a share of the proceeds, should the case be successful.16 The agreements were regarded with distaste as they were considered to encourage speculative litigation and thus amounted to an abuse of the legal process.17 This adverse view was held, whether the funding was by lawyers or non-lawyers.

The earliest reported case in South Africa that applied the Roman-Dutch law authorities is Hollard v Zietsman.18 In this case the advocate for the defendant argued that English law on champerty and maintenance is stronger than Roman law.19 This may explain the tendency of the courts to apply English law in third party litigation funding arrangements. The purpose of the Roman-Dutch rule pactum de quota litis was to deter attorneys and advocates from speculating in litigation.20 After both advocates for plaintiff and defendant had canvassed Roman and Roman-Dutch law authorities on

litigation funding, the court concluded that it is not illegal to agree with another to bear part of that other's costs of litigation, but agreements to purchase the subject matter of a suit (de quota litis or champerty) are illegal.21 English common law condemned champerty as protecting the integrity of the judicial system because of the fear that champertous agreements could give rise to abuse such as the inflation of damages, the suppression of evidence, and the suborning of witnesses.22 In 1995 the English court in Aratra Potato Co v Taylor Johnson Garrett23 found that it was champertous to agree on a differential fee arrangement depending on the outcome of the case. This view has also been expressed in early South African cases and more specifically in Campbell v Welverdiend Diamonds Ltd,24 where the court stated:

It is clear from the authorities that while a transaction of this kind may be properly entered into, and may be supported where it is a genuine case of assisting a litigant for a fair recompense, it cannot be supported in other cases; a court is not to give effect to arrangements which are made by persons who traffic in litigation.

In South Africa, however, it has long been accepted that an agreement to assist a litigant in exchange for a percentage of the proceeds (a pactum de quota litis) is lawful, provided that it was entered into in good faith, and with the object of assisting the litigant in the exercise of his rights.25 The partial acceptance of third party litigation funding was foreshadowed in a paradoxical dictum in Patz v Salzburg,26 where Innes CJ stated:

[O]f course it is against public policy to traffic or gamble in lawsuits, or to maintain them for speculative or wrongful purposes. That is both English and Roman-Dutch law. But it is not unlawful bona fide and properly to assist a litigant to defend or establish his rights, even though the person so assisting may derive some benefit from the subject-matter of the action.

In Patz v Salzburg27 the court showed its disapproval of third party litigation funding agreements when applying the English common law rule of champerty. At the same time the court seemed to be willing to relax the rule

by allowing such agreements where a bona fide third party who has no stake in such litigation finances the proceedings (maintenance), and also shares the proceeds (champerty). The dictum foreshadows a later development in South African law where the legality of agreements in which third parties fund litigation is recognised.28 Evidently, there has been a steady development with regard to litigation funding arrangements in South Africa, following the English law authorities on the subject matter. The development is discussed below by looking into South African court cases that ruled on third party litigation funding.

3 Third party litigation funding agreements in South Africa

It is trite law by now that champerty and maintenance contracts were initially perceived as contracts injurious to the administration of justice and as a result were regarded as against public policy.29 Christie and Bradfield argue that the civil courts are designed primarily for the settlement of bona fide disputes between litigants with or without the assistance of entirely disinterested members of the legal profession and those that do not have the right of appearance in court.30 Furthermore, they argue that any contract that does not fit this pattern of litigation may contain the seeds of injustice and must therefore be closely scrutinised.31

The Supreme Court of Appeal in Price Waterhouse Coopers Inc v National Potato Co-Operative Ltd32 held that third party litigation funding agreements are recognised in South Africa, because the civil justice system has developed its own inner strength. The court examined and endorsed some champertous agreements by holding that these agreements are not contrary to public policy or void, and that the illegality of these contracts is not a defence in action. The court further held that litigation pursuant to such a contract may where necessary constitute an abuse of process,

notwithstanding a litigant's right of access to the courts enshrined in section 34 of the Constitution.33

This was the position for almost nine years after this landmark decision on third party litigation funding (non-lawyers). In 2013 the Gauteng North High Court in Price Waterhouse Coopers Inc v IMF Ltd34 further developed the landmark recognition of the Supreme Court of Appeal on champertous agreements. In short, the high court held that the litigation funder can be joined as a co-litigant in the litigation in order to be able to give a cost order against such a funder. The court regarded this to be a logical progression from the recognition that champertous agreements are lawful.35 It added that the ability to hold the funder liable for costs is one of the measures that the courts could adopt to counter any possible abuses arising from the recognition of the validity of champertous agreements.36

Following the decision to join funders in the proceedings, the Western Cape High Court in EP Property Projects (Pty) Ltd v Registrar of Deeds, Cape Town37 (hereafter EP Property Projects) applied the decision in Price Waterhouse Coopers Inc v IMF Ltd38 by exercising its discretion to grant a cost order against a litigation funder who had been joined in the litigation. The court scrutinised the position in English law and other common law jurisdictions, observing that cost orders would generally not be granted against what it referred to as "pure funders". Pure funders are funders who do not seek to control the course of the litigation and lack any personal interest in the litigation.39 However, where the funder controls the proceedings and has a personal interest in its being successful, then the funder is not so much facilitating access to justice as he is gaining access for his purposes, and becoming the "real" litigant.40 It is then considered that he may be held liable for any adverse cost orders.

Another decision of importance is Scholtz v Merryweather.41 The Western Cape High Court applied the distinction laid down in EP Property Projects

(Pty) Ltd v Registrar of Deeds, Cape Town,42 between the "pure funders" who are immune to adverse cost orders and controlling litigation funders who have personal interest and seek to control the litigation. The court held that the funder is liable jointly and severally with the litigant for the costs of the application because the funder had not only funded the litigation but had substantially controlled the proceedings by hindering the service of summons, consulting lawyers, and initiating the rescission application.43 The funder also stood to benefit in that if the judgment could be rescinded, he would be relieved of his common-law obligation to support the litigant, who is his son.44

The distinction between "pure funders" and other funders as laid down in the EP Property Projects45 was also applied by the Gauteng Local Division in Gold Fields Ltd v Motley Rice LLC.46 The court held that the funder was a "pure funder" because the funder would get no financial gain if the litigation was successful, nor did he exercise substantial control of the litigation.47 The funder was merely facilitating access to justice and not "gaining access to justice for his own purposes."48

Considering these developments it is prudent to look back at Wallis's remarks that funding provided by litigation investors clearly can be a viable way of providing some litigants with access to the courts, although restrictions on the types of cases which may be undertaken and potential ethical implications can be expected.49 There seems to be a proliferation of litigation funding companies in South Africa, as outlined below.

In 2013 the first litigation funding company, called the South African Litigation Funding Company (SALFCO),50 was established. Other companies of a similar nature include Astrea, Christopher Consulting, and Litigation FundingSA. There are a number of other companies that have shown interest in investing in South African cases, such as IMF Australia. IMF Australia was engaged as a funder in the high-profile case of Price

Waterhouse Coopers Inc v IMF Ltd.51 A London-based funder, Calunius Capital, is another company which has shown interest in operating in South Africa.52 The emergence of these funding companies and individuals comes with many problems. These problems relate to issues of transparency, fairness to clients, the impact of the funder on the case, and the influence that the funder has on the overall decisions regarding the case. The problems that third party litigation funding agreements pose in England and in South Africa are similar. Beisner and Gary53 have outlined some of the problems with regard to third party litigation funding agreements in the United States of America. Firstly, they argue that the proliferation of funders will increase the volume of uncertain litigation as disputes are investments to them. Secondly, funders may try to exert control over strategic decisions relating to the case. Thirdly, funders tend to prolong litigation by preventing the settlement of the case. Lastly, lawyers tend to give less attention to the interest of the litigant, as the aim is to retain future business with the funder.54 The funders are not restricted to the percentage they generally charge clients, as in some cases they may charge beyond what is considered reasonable.

The issue of concluding third party litigation funding agreements in South Africa has not yet been addressed, except for the aftermath of that agreement, when the matter is before the courts. The current state of third party litigation funding in South Africa is problematic in that it protects the funder more than the litigant as a client of the litigation funder. The litigant is not protected in terms of the National Credit Act55 or the Consumer Protection Act,56 as these agreements provide a wide scope of freedom of contract to the funder as the qui contractus initiat. In a case where the litigation is about land, for example, the litigant may end up losing half of the land due to the contract the litigant entered into with the funder. In terms of section 1 of the National Credit Act57 the litigant is not a consumer, and the agreement does not amount to credit. The reason why the agreement cannot amount to a credit agreement is that the funder becomes entitled to payment only after achieving success in the litigation. This means that the funder will get professional disbursements and remuneration without interest in the ordinary sense but with an agreed upon percentage of the

capital award only when the case is successful, which is akin to a success fee.

It is clear therefore that there is an imbalance in this form of agreement, where the funder can charge an exorbitantly high fee due to the risk undertaken, even though the case shows prima facie that it is meritorious. Although the Contingency Fees Act 66 of 1997 protects the litigants with regard to lawyers, third party litigation funding can result in unfair and abusive contract terms against litigants. This is so because the Contingency Fees Act58 which regulates funding provided by lawyers to litigants does not apply. There is no limit to the amount a funder can draw after the finalisation of a matter she/he funded,59 there are no mechanisms regulating how the fee agreement should be worded/the exact clauses that should feature in the agreement to avoid invalidity,60 and there are also no legal consequences for a failure to adhere to established standards.61 Although some practitioners seem to be confused about the application of the Contingency Fees Act,62 the Act has clear guidelines regarding its applicability.

In the light of the above discussion of the academic literature and case law, it is apparent that third party litigation funding has recently become more acceptable in South African law and elsewhere. As a result, there is a need for a more robust regulatory scheme in South Africa. The discussion also indicates that the challenges that South Africa is currently facing regarding third party litigation agreements are similar to those in other jurisdictions. These include the involvement of cross-border funders who may influence our judiciary to view matters in a different light. It is worth noting that South Africa adopted some aspects – if not all – of third party funding from English law. A discussion of both jurisdictions regarding recent developments of this mode of funding follows below.

4 Lessons from England

It is not surprising that South African law was strongly influenced by English law as there are many similarities in the two jurisdictions with regard to the perceptions held in dealing with third party litigation funding agreements. This may be largely because of the common law system South Africa

subscribes to. In both of these jurisdictions the courts have been progressive, albeit gradually, in developing mechanisms to solve third party litigation funding agreement problems case by case. The research reflected in the preceding section has established that the reliance on the court's discretion is not enough in South Africa to regulate the third party funding environment.

The courts in both South Africa and England have consistently been antagonistically opposed to third party litigation funding agreements and considered them to be against public policy.63 In the event the legislature decided to unmask these agreements indirectly by introducing what in England is the conditional fee agreement and in South Africa is a duplicate by the name of contingency fee agreements. These were attempts to further implement the principle of access to justice and led to the acceptance of third party litigation funding agreements.

In both English and South African law, a litigation funder other than a "pure funder" can in certain circumstances be joined as a co-litigant in the litigation in order for the court to be able to give a cost order against such a funder.64 This development minimises the risk of the abuse of the justice system in both countries. In South Africa this has been effected in recent cases such as Price Waterhouse Coopers Inc v IMF Ltd,65 EP Property Projects (Pty) Ltd v Registrar of Deeds, Cape Town,66 Scholtz v Merryweather,67 and Gold Fields Ltd v Motley Rice LLC.68

The English law position can be established through a consideration of the findings of the research conducted by Lord Rupert Jackson in his review of

civil litigation costs.69 In concluding his research Lord Jackson noted that the regulation of third party funding agreements was insufficient and that there were few players in the funding industry.70 This led to the creation of a self-regulated organisation called the Association of Litigation Funders. This organisation provides guidelines on how to finance litigation through its Code of Conduct,71 which is not legislation per se but provides clarity on these kinds of agreements.

The perception in both jurisdictions has been that third party litigation funding is nascent, and as such it does not need to be legislated.72 This opinion is largely shared by the litigation funders themselves. They argue that parties who use third party litigation funding are generally commercial or similar enterprises with access to full legal advice.73 This argument does not highlight the historical context in which litigation funders have been operating. Third party litigation funding has been an issue since the time of Rabin74 and Winfield.75 However, recent case law and academic discourse, especially that which is related to proponents of a free-regulation industry that operates beyond the compass of the law, treat this as a new phenomenon.76 Most cases in South African and English law that deal with third party litigation funding agreements indicate that these agreements are not new and that they create problems when they are not regulated.

In English law, however, third party litigation funding agreements are not entirely unregulated. The Courts and Legal Services Act77 allows the third party litigation agreements and includes the definition of a funder. The Act also provides conditions applicable to the funding agreements and requires the approval of the Secretary of State or a prescribed person for certain funders. Key amongst these conditions is that the funding agreement must be in writing.78 Section 58B of the Courts and Legal Services Act79 also

empowers the Secretary of State to make regulations after consulting with judges, the General Council of the Bar, the Law Society, and other appropriate bodies. The regulations have not been implemented yet. Thus there is still a vacuum in the proper regulation of third party litigation funding in English law. The litigation funding environment is still largely self-regulated by the Code of Conduct of Association of Litigation Funders 2016 in English law. The recommendations discussed below could provide more clarity on regulating third party litigation funding agreements in South Africa.

5 Recommendations

In view of the problems facing third party litigation funding agreements in South Africa it is imperative that statutory regulation be considered instead of relying on self-regulation by litigation funding investors as in English law. Just as in England, the industry has outgrown self-regulation, as the regulation is binding on members of the association of funders only, and non-members have no obligation to abide by the self-regulation. The third party litigation funding has already reached the critical point referred to in the Jackson Report of 2009:80 a point where regulation is necessary. If left ungoverned, South African third party litigation funding, like its counterpart in England, will constitute a risk to the market and to litigation.81

To provide access to justice and minimise injustice to litigants the legislator must find means to regulate third party litigation funding properly. This is also in line with the principle of Ubuntu in the light of transformative constitutionalism in South Africa. This is also to meet the need for general fairness and in accord with the "restorative" spirit of the South African Bill of Rights. Surely third party litigation agreements have to be strictly regulated as a matter of fairness to avoid the disproportionate charging of litigants. Although this article does not intend to provide a blueprint to be followed in drafting a solution, the article shows the need to regulate third party litigation funding agreements.

The recommendations that apply in South Africa are as follows:

In view of the overwhelming criticism of the English Code of Conduct for Litigation Funders,91 it would be prudent for South Africa to regulate third party litigation funding agreements to avoid abuse – especially by new funders emerging with own practices that may result in exploiting litigants. The above recommendations could assist in providing guiding legislation that will enable both litigants and funders to operate fairly in dealings with each other. The regulation of third party agreements would not only provide the courts with oversight as in the case of contingency fee agreements, but would also foster transparency and prevent the overcharging of clients.92 The research in formulating these recommendations is mindful of the surrounding legal framework and socio-economic circumstances in foreign jurisdictions and their difference from those that prevail in the South African context.

6 Conclusion

It is evident that the history of third party litigation funding agreements and contingency fee agreements is interrelated. Both of these agreements were prohibited in countries that were influenced by the English common law. It is also evident that there is growth in litigation funding agreements, as the article has shown that the growing number of third party litigation funders poses problems for the courts. Having considered the earlier and more recent research conducted on the subject, this article has shown in the

recommendations section that it would be beneficial to regulate third party litigation funding The article has also highlighted that new mechanisms fostering access to justice have proved to be useful. However, they should be looked at with particular care as they also pose potential risks if not properly regulated. Considering the rise in the number of reported cases, it is clear that funding for meritorious cases is in demand, and may give rise to abuse.

The research shows that relevant legislation should provide guidelines on how to deal with cases where the identity of funders is not disclosed, and how to ensure fairness in the levying of funders’ fees. The element of the control of litigation by the funder should be regulated. This regulation should benefit both the funder and the litigant with regard to the control of the litigation. Disclosing the involvement of a third party funder to the other party to the litigation would change the dynamics of the litigation and in most cases balance the scales with regard to access to justice. There should be an incentive for funders to fund the meritorious claims of individuals who are unable to access justice due to monetary constraints, and the funding of litigation should therefore not be limited to commercial cases.

This article indicates the need for the courts and the legislature to find means beyond those recommended in this article to properly limit the effects of third party litigation funding agreements. As indicated, a good starting point to look at for the reform of third party litigation funding agreements is English law. England is the only country that currently has a mechanism to regulate third party litigation funding agreements, although the system of doing so is flawed. It is also concluded that third party litigation funding should be fully regulated by legislation to protect the interests of litigants and defendants. The proposed legislation could resemble the Code of Conduct in England by the Association of Litigation Funders. The legislation should provide measures including but not limited to transparency in litigation funding agreements. Third party litigation funding and its subspecies contingency fee agreements have developed and are strengthening the right of many litigants to have their disputes adjudicated by the courts. It is suggested that there should be further research by the Reform Commission on the area of third party litigation funding. This can be done by drawing comparison with countries contemplating legislating third party litigation funding in order to implement better measures and further the public policy on access to justice. The doors for justice have been opened and a lack of funding is no longer a barrier to engaging in litigation.

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List of Abbreviations