Introduction
"Third party funding is a feature of modern
litigation." These opening words of the judgment of the
English Court of Appeal in Excalibur1 reflected
the reality that over the course of the last 20 years the role of
third party funding in major litigation, including competition
litigation, has become pervasive in many jurisdictions, including
England, the US and Germany, and in international arbitration.
Indeed, funders find competition litigation particularly attractive
as an investment opportunity, where often the litigation arises as
the result of a conclusive finding of a breach of competition law
by a local or regional regulator. Breach has already been
established, leaving only causation and quantum to be determined.
But the involvement of an additional entity in the assessment of
the merits of a claim can lead to questions about the application
of privilege.
