Rachael Mulheron, ‘Unpacking PACCAR: Statutory Interpretation and Litigation Funding’

ABSTRACT
In the most important funding decision in 20 years, the UK Supreme Court has declared in R (PACCAR Inc and others) v Competition Appeal Tribunal and others [2023] UKSC 28, [2023] 1 WLR 2594 that, as a matter of statutory interpretation, a third-party funder’s litigation funding agreement (LFA) is a damages-based agreement (DBA) because third-party funders are offering ‘claims management services’. This decision, which overturned both the earlier Divisional Court and the Competition Appeal Tribunal decisions, and long-held industry and judicial understanding, has had an immediate impact upon UK litigation. Many LFAs will require immediate re-negotiation, given their non-compliance with the DBA legislation; but for some, the ramifications are much more serious. This article traces the legislation, soft law and law reform activity which preceded this momentous event; it suggests that a key principle of statutory interpretation which governed the outcome might arguably be re-evaluated in future case law; it discusses the possibility of legislative reversal; and it predicts the ramifications of the PACCAR decision upon (especially consumer) litigation unless reversed.

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Rachael Mulheron, Unpacking PACCAR: Statutory Interpretation And Litigation Funding, Cambridge Law Journal. Published online by Cambridge University Press: 20 March 2024.

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