New Trends in Financing Civil Litigation in Europe

New Trends in Financing Civil Litigation in Europe

A Legal, Empirical, and Economic Analysis

New Horizons in Law and Economics series

Edited by Mark Tuil and Louis Visscher

This unique and timely book analyses the problem of financing civil litigation. The expert contributors discuss the legal possibilities and difficulties associated with several instruments – including cost shifting, fee arrangements, legal expense insurance and group litigation.

Chapter 9: New Trends in Financing Civil Litigation in Europe: Lessons to be Learned

Mark Tuil and Louis Visscher

Subjects: economics and finance, law and economics, law - academic, european law, law and economics

Extract

9. New trends in financing civil litigation in Europe: lessons to be learned Mark Tuil and Louis Visscher INTRODUCTION1 1. Civil litigation serves a multitude of goals, many of which were explicitly touched upon in the previous chapters. Civil litigation in the first instance is a way of resolving conflicts. Depending on the type of conflict at hand, the plaintiff for example may want the court to issue a declaration regarding the unlawfulness of the defendant’s behaviour, or he may want the defendant to restore the status quo ante, to refrain from further infringements, to perform his contractual duties, to compensate his losses, or to restitute illegitimate benefits. In essence, civil litigation is a way to realise rights and entitlements, without having to resort to vigilantism. In addition, civil litigation is a driving force behind legal development. The continuous flow of cases forces (or maybe better: enables) courts to find new solutions for existing problems. An ever-changing society is confronted with conflicts which legislators cannot all foresee ex ante. However, the ex post character of civil litigation enables courts to seek solutions to the arisen issues. Furthermore, even though the conflict-resolving goal of civil litigation in essence is retrospective to the conflict at hand, the legal norms which are created by the courts in deciding the cases may very well have an ex ante impact on the parties involved in the conflict, as well as on other actors. Put differently, civil litigation may also serve the goal of deterrence, because...

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