INTRODUCTION
Every case decided by the United Kingdom Supreme Court (UKSC) has significance, but rarely will an appeal have the potential to affect detrimentally both an entire statutory regime and an industry inextricably linked with the conduct of litigation in this jurisdiction. Yet that is the degree of importance that underpins the forthcoming appeal in R (on the application of Paccar Inc and others) v Competition Appeal Tribunal and others (‘the Appeal’). Simply put, the question for the UKSC to decide is whether a third party funder’s litigation funding agreement (‘LFA’), pursuant to which the funder is entitled to recover a percentage of any damages obtained, is a damages-based agreement (‘DBA’), or contingency fee, under section 58AA of the Courts and Legal Services Act 1990. If it is, then the consequences for the United Kingdom’s (UK’s) nascent class action regime for competition law grievances are enormous. That is because DBAs are unlawful as a means of funding for any opt-out class action – they are statutorily proscribed by section 47C(8) of the Competition Act 1998 …
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Rachael Mulheron, The Funding of the United Kingdom’s Class Action at a Cross-Roads, King’s Law Journal. Published online: 5 Jan 2023.
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