After Fostif: lingering uncertainties and controversies about litigation funding

Abstract

This article will examine uncertainties and controversies that remain unresolved after the High Court recognised litigation funding in Campbells Cash and Carry v Fostif Pty Ltd (2006) 229 CLR 386. The uncertainties are doctrinal, eg whether the assignment of a right to litigate is valid, and systemic, eg whether the existing suite of approaches is sufficiently robust to manage the challenges presented by litigation funding. Controversies persist as to whether litigation funders promote trafficking and meddling in litigation. Recent case law demonstrates that the policy underpinning the doctrines of maintenance and champerty still has salience. However, it will be argued that effective regulation of this area requires a coordinated approach and must move across different instruments and contexts. The article will sketch out some elements of effective regulation and make suggestions for reform of the current regime.