Ruling of the Tribunal in connection with the Proposed Class Representative’s revised litigation funding agreement.
The issue which fell for determination was whether the costs or a funder’s fee could be paid out of damages i.e. whether Parliament intended the power of the class representative, to enter into a litigation funding agreement, was to be curtailed beyond the requirement of acting fairly and in the interests of the class. Other than the illegality of entering into a damages-based agreement, the Tribunal saw no reason for reaching a conclusion that it did.
If the legislature had intended that costs or a funder’s fee could not be paid out of damages, there is no reason why it would not have stated this. Moreover, section 47C(3)(b) of the Competition Act 1998 (“CA98”) contemplates that the Tribunal can order the payment of damages to such other person as it sees fit, and the Tribunal saw no reason why this power could not extend to litigation funders in appropriate circumstances. Section 47C(3)(b) CA98 is consistent with the view that a class representative has (subject to supervision by the Tribunal) the power to agree to pay a proportion of damages to a litigation funder.
