Litigation investment as a tool to overcome obstacles in the exercise of the right to access to court: the essence and prospects for implementation in Ukraine

Abstract

The presented work is devoted to the study and disclosure of the essence of litigation investment as a tool to overcome financial barriers to access to justice, as well as to the consideration of the possibilities and ways of implementing this institution in Ukraine. Litigation investment is proposed to be considered as a mechanism in which one party (investor), which is not the subject of disputed legal relations, assumes the burden of full or partial coverage of the legal costs of a person – a participant in the dispute (recipient), who is not able to pay them on his own and, in case of resolution court case in favor of such a person, is entitled to a financial reward. Based on an analysis of the experience of other countries that have introduced litigation financing tools, a review of the most common models and schemes of litigation investment has been carried out. Based on the results of the study, the point of view was expressed that the introduction of the institution of litigation investment in Ukraine has its own prospects, however, it requires the preparation of an appropriate legal ground, both at the level of substantive and procedural law. In particular, it is considered necessary to legislate in the civil legislation the construction of a separate contract - an agreement on the financing of legal costs. Along with this, it is noted that it is necessary to reform the procedural legislation, at least in the following directions: 1) provision in procedural codes for the possibility of financing court costs by a third, uninterested party; 2) fixing the structures of "success fee" and "conditional fee"; 3) introduction of the class action structure.