Third Party Litigation Funding: A New Route to Accessing Justice by Bobby Banson*

ACCESS TO JUSTICE

With the recent hikes in the filling fees and other administrative charges associated with Court proceedings and processes in Ghana as well as the upward adjustments of the Bar Scale of Fees for Lawyers, the perception that justice is the preserve of the rich seems to have gained notoriety. Litigants are made to weigh the cost benefit analysis before venturing into the area of litigation. This situation leaves prospective litigants no choice than to take solace in the proverbial words of “Fame Nyame” to wit “leave it to God”. Justice is simply expensive in Ghana to the average person.

The Legal Aid System[1], which was established to assist persons with financial difficulties have access to justice has not been able to live up to its purpose due to the paltry funding it has continued to receive over the years.

Ghanaian Lawyers, despite the admonishing in the Legal Professions Act[2], often turn away prospective Clients who cannot afford their fees. The best they usually do is to refer the Clients to Junior Associates and Pupils who they claim will need the pro bono experience to be better lawyers. The legal practice of “no win no fee” is something that can never be accepted in Ghana due to our own socio economic idiosyncrasies.

The combined effect of all these challenges is that cases are not brought forward at all. Even litigants who can fund their cases are hesitant to do so because of the uncertainties of the outcome of the case which will mean that they risk getting nothing in return, save the additional burden of being slapped with heavy cost to be paid to the other side.

LITIGATION FUNDING AS AN ALTERNATIVE APPROACH

In other developed Legal Systems such as the England and Wales, Australia, Germany, Spain and even South Africa[3], there has been in roads in developing an alternative means of access to justice. This approach is simply referred to as “Litigation Funding”.

Litigation Funding is an arrangement where third parties agree to wholly fund litigation (or arbitration) in return for a share of the proceeds/cost or damages awarded from the litigation. The litigant pays nothing. The third funder only gets a share of what is awarded so that if the litigant looses, the funder looses. The commercial risk of the litigation is shifted to the third party funder. Litigation Funding could apply in large scale commercial litigation to small claims civil actions, depending on the quantum of risk that the funder desires to take on. It is a win win situation for the litigant.

THE GHANAIAN EXPERIENCE

If we thought that litigation funding is far from our shores, then two recent decisions by the Supreme Court will take us aback.

In the case of Amidu v Attorney General, Waterville & Woyome [2013-2014] 1SCGLR 112, Justice Doste had this to say at page 166 of the report “The role of the Plaintiff, Martin Alamisi Amidu, a distinguished former Attorney General of this Country, needs to be highly commended as was done in the lead judgment of the Court (per Dr. Date-Bah JSC). I would only add that there is indeed the need for civil society organizations or groups to come to the assistance of such a Plaintiff. This is because from the plethora of documents filed in this case, I reckon that the Plaintiff has been put to a lot of expense all in an attempt to protect the interests of the state”.

What the Supreme Court, speaking through Doste JSC, was in fact doing, was solicit for financial support to help fund such public spirited and constitutional litigation.

This is not the first time such a call has been made on the African Continent. During a recent court battle involving Botswana’s president, Lieutenant General Ian Khama, opposition leader Botsalo Ntuane of the Botswana Movement for Democracy also called for provisions allowing third-party stakeholders to fund constitutional cases.

In the commercial sphere, there has been one interesting development worth noting. Every commercially savvy Ghanaian must have heard of the legal battle surrounding the acquisition by the mobile telecommunication giant MTN, of Spacefone in Ghana. Well we all thought that case had ended with the multi million settlement until this: Jonah v Kulendi & Kulendi reported in [2013-2014] 1SCGLR 272. The relevant facts of the case as found at pages 278 to page 279 are as follows:

The Plaintiff (Sir. Sam Jonah), pleaded among other things in the statement of claim, that the said Richmond Aggrey, whilst prosecuting an action against Investcom, Scancom and Grand View Management Ltd, was in dire financial needs and persuaded the Plaintiff to advance to him a sum of $1,000,000.00 for his upkeep and thereupon executed a support agreement on 24th April 2009 between the Plaintiff herein and Richmond Aggrey (the first Defendant). In the said agreement, Richmond Aggrey did undertake to repay the loan of $1,000,000.00 with interest at Libor plus five percent from the sums to be recived from the suit against Investcom and others referred to above which was also pending at the commercial court, Accra as judgment or settlement; and that the loan plus interest shall constitute first ranking charge to be paid out of the judgment debt among other transactions relating to the suit; that the first defendant (Richmond Aggrey) irrevocably agreed not to settle or compromise the suit or accept an out of Court settlement, a judgment sum that is less than $200,000,000.00 without the prior written consent of the Plaintiff herein.

As against the second and third defendants (Kulendi & Kulendi), the Plaintiff contended that they had received $100,000 as legal fees from the Plaintiff to prosecute the suit involving Richmond Aggrey and Investcom and others.

The case between Richmond Aggrey and Investcom was finally settled for $54,000,000. The Plaintiff herein was of the opinion that the settlement was in breach of the agreement between them and that Kulendi & Kulendi were in breach of their professional duties to the Plaintiff.

The Supreme Court held inter alia that because the Solicitors did not receive any instructions from the litigation Funder (Sam Jonah) and was not a party to the agreement signed in 2009 between Richmond Aggrey and Sam Jonah, the Funder has no cause of action against the law firm.

These facts as narrated have all the features of a typical litigation funding scenario. The third party funder (Sir Sam Jonah) agrees to pay the lawyer’s fees and other expense for a Plaintiff in a suit in expectation of being paid a share of proceeds from the settlement of the case. That is what litigation funding is all about.

I will not attempt to criticize the judgment in this article.

Be that as it may, it has become obvious that the idea of litigation funding is very possible to implement in Ghana as has been done so successfully over the years in the jurisdictions already cited above. Had our legal system developed a regulatory framework for litigation funding, may be the decision by the Supreme Court would have been different.

THE CHALLENGE

Mentality

According to Simon Salzedo QC[4], “one of the reasons that some clients would not want funding is because of the need to look at it as a commercial risk. Many Claimants with big claims, perhaps even some quite sophiscated ones, find it hard to dismiss from their mind their own belief in their claim. A claimant who believes in their claim does not see it as a commercial risk, which is probably how they should see it”.

This situation speaks volumes of the challenge that funders will be facing. Be that as it may, once the concept catches fire and its properly regulated in Ghana, it will be easier for litigation funders to sell their product and make good business out of it. According to Harbour Litigation Funding Ltd, which is the largest litigation Funder in the UK, it has over £400 million of capital behind it. It sure is a big business!

Regulation

In developed jurisdictions where litigation funding is practiced, there are statutory regimes which regulate such practice. These regimes regulate the establishment of litigation funding companies and firms.

In some Countries such as New Zealand, the Courts have sought to regulate litigation funding by outlining rules of conduct for parties engaged in the practice[5].

In the United States for instance, the American Bar Association Commission on Ethics 20/20 formed a working group on Alternative Litigation Finance to study the impact of these emerging transactional structures on the Client-Lawyer relationship and the professional responsibilities of lawyers.

There has been the debate, particularly whether or not litigation funding should be treated as a financial product or as a product of general legal practice. As a financial product, the Ghanaian legal regime, will accommodate such practice under the financial laws and regulations by the Bank of Ghana. If it is deemed as a pure product of legal profession, then same ought to be regulated by the General Legal Council.

Whatever the case may be, any form of regulation should be targeted at these thematic areas:

  1. The minimum Capital Requirements for a Litigation Funder
  2. The relationship between a Funder and the Lawyers handling the claim
  3. The relationship between the funder and the Claimant
  4. The disclosure duty to the Courts and the Claimants by the lawyers

CONCLUSION

Having outlines the advantages of litigation Funding and how it will improve access to justice in Ghana, I must add that in the absence of any form of regulation, the practice may be abused and end up defeating the purpose for which it ought to be encouraged. To this end, I humbly advise that the powers that be take a look at this recent development and develop a legal framework to accommodate this practice; either as a financial product or as a product of the legal profession.

*Associate at MINKAH-PREMO & CO, ACCRA

[1] Legal Aid Scheme Act, 1997, Act 542

[2] Legal Professions (Professional Conduct & Etiquette) Rules, 1969,LI 613.

[3] IMF Australia (a Litigation Funding Company) has been funding the case titled PriceWaterhouseCoopers v National Potato Co-operative (referred to popularly as the Potatoe Case)which is still on going in the South African High Court.

[4] He is a Partner at Brick Court Chambers in London and made these remarks at the Litigation Funding Round table discussion held in 2015 in London

[5] See the case of Waterhouse v Contractors Bonding Ltd [2013] NZCA 151

Share