Third-party funders in judicial review proceedings should be identified to defendants only in exceptional circumstances, the Law Society has said in response to government plans to require anyone contributing more than £3,000 to declare their identities.
Last year the Ministry of Justice consulted on proposals to provide courts with financial information to help decide how to award costs in JR cases.
The ministry confirmed last month that it hopes to introduce a ‘declaration model’ it believes will strike an appropriate balance between providing the court with useful information and avoiding placing claimants under too onerous a duty to reveal details about the financing of their applications.
However, it invited further views on a proposal to provide detailed financial information to defendants and interested parties at the same time it is provided to the court, ensuring ‘equality of arms’.
Responding to the proposal, the Law Society said financial information to defendants or third parties, including the identity of any third-party funder, should be provided only in exceptional circumstances.
Financial information should be disclosed at the court’s discretion only in the event that the claimant cannot meets its liabilities at the end of the case, the Society said.
The court must also be satisfied that the defendant/interested party has provided sufficient grounds demonstrating justifiable concern that the contributor was exerting control over the litigation.
The Society welcomed the ministry’s decision to increase the financial information threshold from the original suggestion of £1,500, to £3,000.
However, although the higher threshold will protect smaller contributions such as many crowd-funding donations, Chancery Lane was concerned that the figure could still catch many parties.
It also risks inundating the court with volumes of unhelpful information.
It said: ‘Although the summary information under the proposed declaration model might be a simple tick-box exercise for a self-funded claimant or a corporate body, those provided with funding from outside of their own resources or legal aid would need to list the names and addresses of all contributors over the proposed threshold of £3,000 as well as detailing the size of the contribution.’
The Society said there were legitimate reasons to give to a charity anonymously, such as avoiding telemarketing calls, email or post solicitations for further donations, as well as a general wish to preserve privacy.
Anonymous donors not a party to proceedings and who have no control over the conduct of litigation or associated costs should be outside the scope of any requirement, the Society recommended.