In many respects the principal issues surrounding Third-Party Funding, namely
• Duties of Counsel
will, or should, all have been dealt with by the time the arbitration comes on for hearing, but it is worth setting out my views on these areas in any event and, also, because timing in relation to some of the issues is crucial and should be included in any recommendations, guidelines or regulation impacting Third-Party Funding.
7.1. Duties of Counsel
It is clear that the presence of Third-Party Funding should have no impact whatsoever on the primary duty of counsel, namely to his/her client.
Counsel’s invoices will be being paid by the Funder and it is possible that, in some instances, counsel’s retainer by the client may have been influenced by the Funder. Nevertheless, counsel’s duty is to act in the client’s best interests, even if that may conflict with the Funder’s interests.
The element of control over proceedings exercised by Funders varies enormously. The more reputable funders, having established and understood the case theory and tactical approach to be taken in the case, at the time of agreeing funding, will usually not get involved in developing or implementing that strategy as the case develops, but will simply expect regular reports as the case progresses, particularly as to any possible adverse developments and, of course, as to budget expenditure.
Such an approach gives rise to no ethical difficulties for counsel as it is the client and counsel who are progressing the case and making the necessary decisions.