No doubt defendants will be rubbing their hands with glee, and watching all this unfold with the popcorn out.
News
Director Mohsin Patel comments on the fallout of Merricks v Mastercard in Law.com and Law360
Following the fallout of the recent Competition Appeal Tribunal case Merricks v Mastercard, Director Mohsin Patel comments on the impact of this ruling and other recent developments on the UK consumer action regime and litigation funding industry in Law.com.
Mohsin’s comments were published in Law.com, 29 January 2025, and Law360, 6 February.
Speaking on Merricks v Mastercard and the news that the litigation funder has launched arbitration proceedings against their own class rep representative, Mohsin told Law.com: “No doubt defendants will be rubbing their hands with glee, and watching all this unfold with the popcorn out.
“It’s very important to consider the background and reputation of a funder before getting into bed with them. You need people that are sensible, and people that won’t wet the bed if something goes wrong, because things go wrong all the time. Litigation is a roller coaster.”
Speaking on the calls for further regulation of the sector, Mohsin told Law.com that it was important to recognise that litigation funding takes place within a highly regulated environment, including the oversight of the courts.
Commenting on the idea that the UK may impose a cap on the recoveries funders are entitled to, as other countries have brought in, Mohsin commented: “I think it would be a really bad thing not just for funders, but for the legal industry, and, frankly, the economy. The legal industry is one of the industries that’s actually still bringing in revenue to this country, and we need that right now.”
Speaking with Law360, Mohsin commented:”A funder can’t really insist on a claimant accepting or rejecting an offer, because that would be exerting inappropriate control. But there can be wording in LFAs that allows for a degree of funder influence — provided there are checks and balances in place, like a King’s Counsel determination clause, as was recently approved by the CAT in the Amazon ‘Buy Box’ carriage dispute hearing.
“The idea that a defendant becomes a de facto funder for the claimant, to argue for a settlement that the defendant has agreed it must pay the claimant, is remarkable. This highlights the inherent complexity and uncertainty in funding large-scale collective actions under a developing regime.”
“I don’t think we will actually see many of these situations. Every LFA will have some protection for funders through customary information rights and cooperation rights — but they may be looking at those aspects of their LFAs a little more closely,”