Experts will look at the expansion of before-the-event insurance in litigation funding next year with the ringing endorsement of one of the country’s top judges. The Civil Justice Council, made up of judges, lawyers and academics, will form a working group in the new year to look at how to increase the application of BTE.
It is expected this group will meet for the first time in late January and the results of its work will feed into fresh thinking on how to ensure as many people as possible have access to justice.
The judiciary has long been positive about BTE insurance: Lord Justice Jackson called for expansion of its use in his civil justice report and recommended it for small businesses and individuals.
In his LawWorks lecture given earlier this month, master of the rolls Sir Terence Etherton said the time has come to follow the examples of other countries, where BTE insurance is the main source of litigation funding.
Citing the German system and ongoing efforts to expand BTE provision in Canada, Etherton said more could be done to ensure it is more widely used in the UK.
‘It is I think unlikely that the current approach to legal aid will be reversed,’ he said. ‘This places an onus on us all to think of ways in which litigation funding can properly be secured for the very many low and middle-income individuals, and small businesses, who are unable to fund litigation properly.’
Etherton said the extension of BTE insurance will come with the potential new regime of fixed recoverable costs, an issue currently being reviewed by Jackson.
The master of the rolls said the success of BTE insurance in Germany is predicated on a ‘symbiotic relationship’ with fixed costs.
‘If we remove the stumbling block by introducing such a costs regime, we may be able to develop an across the board BTE insurance scheme that will work as well as that in Germany,’ he added.