Affordable access to justice: towards sustainable cost and funding mechanisms for civil litigation in Europe

Samenvatting

Access to justice is a human right guaranteed by the European Human Rights Convention and the EU Charter of Fundamental Rights, and is crucial for sustainable economic growth. It is also the fundamental right that is most often violated. At the heart of effective access to civil justice lies litigation funding and cost management. Access to civil justice is under pressure due to retrenching governments, high costs, and procedural inefficiency.
Two prominent developments in civil litigation are (1) the shift from public to private funding (in particular third-party funding and crowdfunding) and (2) the reform of cost rules (including fee shifting, proportionality rules, cost sanctions). While these are promising to bridge the access to justice gap, they also pose challenges, are surrounded by legal uncertainty, and not always effective. Third-party funding so far primarily benefits high-stake claims and entails the risk of conflict of interests. It has fundamentally changed the legal service market (entrepreneurial lawyering). Cost-related schemes, including cost-shifting rules, may have behavioural consequences, including triggering adverse selection among litigants, or incentivising abusive and opportunistic behaviour. Alternative ways of financing are on the rise in Europe, but still highly unregulated and lacking in fundamental research, and will be a major theme of civil procedure in the years to come.
The proposed project will assess new pathways to civil justice funding and cost schemes, with a view to developing a balanced financing system, thereby securing access to justice in Europe. Combining legal-normative, comparative law, and empirical research, the project will (1) analyse the development of private funding and cost mechanisms in selected European jurisdictions; (2) scrutinise these against the background of securing access to justice as a fundamental right; and (3) devise a framework for funding and cost rules, contributing to a sustainable European civil justice system.

Kenmerken

Projectnummer

VI.C.191.082

Hoofdaanvrager

Prof. dr. X.E. Kramer

Verbonden aan

Erasmus Universiteit Rotterdam, Erasmus School of Law, Privaatrecht

Looptijd

01/09/2020 tot 01/09/2025