Financing Litigation Legal Research Project

Overview

In May 2013, Dr. Julie Macfarlane, professor at the University of Windsor Faculty of Law, published her National Report on Self-Represented Litigants, funded in part, by the Law Foundation of British Columbia (LFBC). The Macfarlane Report concluded, at page 39, that “By far the most consistently cited reason for self-representation was the inability to afford to retain, or to continue to retain, legal counsel.” The numbers of self-represented litigants in British Columbia’s courts has been steadily increasing for several years. The problems arising from self-representation in legal proceedings are complex and require multiple solutions. The purpose of this project is to explore the financing of litigation, including public, private, and third-party funding (excluding Legal Aid) to evaluate the current financing mechanisms and its participants, and examine whether there are potential opportunities for structural, systemic or legal changes that could improve the availability of financing for litigants as one means of reducing the incidence of self-representation. This is planned as an eighteen-month legal research project aided by the advice of volunteer experts. Specific objectives include:

1. Examining who is providing financing for litigation (as opposed to publicly funded Legal Aid), the factors that support the providing of financing of litigation, and comparing the options available in British Columbia to those in other jurisdictions with more developed litigation financing options;
2. Examining legal and structural constraints that may be limiting the provision of more private financing of litigation. An example of one potential constraint to be examined is the common law rule against champerty and maintenance;
3. Examining cases from the Court of Appeal and identifying trends of self-represented litigants faced financing issues; and
4. Identifying and analyzing options for structural or legal changes that could facilitate greater participation of private financing for litigants.

The overall objectives of the Project are to:

1. Provide a researched, comprehensive review of the issues relating to the private financing of litigation in British Columbia; and
2. Discuss structural or legal changes that could facilitate greater participation of private financing for litigants and support access to justice by providing litigants with increased financing alternatives and avoiding self-representation.