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After Fostif: Lingering Uncertainties and Controversies About Litigation Funding

(2008) 18 Journal of Judicial Administration 101

15 Pages Posted: 17 Nov 2014  

Peta Spender

Australian National University - ANU College of Law

Date Written: September 22, 2008

Abstract

This article will examine uncertainties and controversies that remain unresolved after the High Court recognised litigation funding in Campbells Cash and Carry v Fostif Pty Ltd (2006) 229 CLR 386. The uncertainties are doctrinal, eg whether the assignment of a right to litigate is valid, and systemic, eg whether the existing suite of approaches is sufficiently robust to manage the challenges presented by litigation funding. Controversies persist as to whether litigation funders promote trafficking and meddling in litigation. Recent case law demonstrates that the policy underpinning the doctrines of maintenance and champerty still has salience. However, it will be argued that effective regulation of this area requires a coordinated approach and must move across different instruments and contexts. The article will sketch out some elements of effective regulation and make suggestions for reform of the current regime.

Keywords: litigation funding, access to justice, maintenance, champerty, assignment, regulation

JEL Classification: K20, K41

Suggested Citation

Spender, Peta, After Fostif: Lingering Uncertainties and Controversies About Litigation Funding (September 22, 2008). (2008) 18 Journal of Judicial Administration 101. Available at SSRN: https://ssrn.com/abstract=2525036

Peta Spender (Contact Author)

Australian National University - ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

HOME PAGE: http://law.anu.edu.au/

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