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PACCAR Inc & Ors, R (on the application of) v Competition Appeal Tribunal & Ors

United Kingdom Supreme Court
Jul 26, 2023
Smart Summary (Beta)

Factual and Procedural Background

The appeal concerns proposed collective proceedings in the Competition Appeal Tribunal (“the CAT”) brought by truck purchasers (“the Respondents”) against several truck manufacturers (“the Appellants”) following a European Commission finding of anti-competitive collusion. The Respondents rely on third-party litigation funding agreements under which commercial funders advance the costs of the litigation in return for a percentage of any damages recovered.

The Appellants resisted certification of the collective proceedings, arguing that the funding agreements are unenforceable “damages-based agreements” (“DBAs”) under section 58AA of the Courts and Legal Services Act 1990 (“CLSA 1990”) because, they said, the funders supply “claims management services”. The CAT rejected that contention and certified the claims. The Divisional Court, on judicial review, upheld the CAT’s view. The present opinion is the dissenting judgment of Judge Rose in the Supreme Court; Judge Rose would have dismissed the appeal, thereby affirming the lower courts.

Legal Issues Presented

  1. Whether commercial litigation funding agreements that entitle the funder to a share of damages fall within the statutory definition of a “damages-based agreement” in section 58AA CLSA 1990.
  2. Whether, for the purposes of section 58AA, the funders are providers of “claims management services” as defined in section 419A of the Financial Services and Markets Act 2000.
  3. If the agreements are DBAs, whether non-compliance with the Damages-Based Agreements Regulations 2010/2013 renders them unenforceable.

Arguments of the Parties

Appellants' Arguments

  • The funders furnish “financial services or assistance … in relation to the making of a claim” and therefore supply “claims management services” within section 419A.
  • Consequently, the funding agreements are DBAs under section 58AA and, because they do not satisfy the 2010/2013 DBA Regulations, they are unenforceable.
  • Certification of the collective proceedings should therefore be refused.

Respondents' Arguments

  • Litigation funders merely finance proceedings; they do not manage claims and are therefore outside the ordinary meaning of “claims management services”.
  • Section 58AA was never intended to govern pure funding arrangements; such agreements were contemplated separately under the (un-commenced) section 58B CLSA 1990.
  • The Damages-Based Agreements Regulations are drafted for legal representatives, not passive funders, and cannot sensibly apply to third-party funding contracts.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Royal College of Nursing v Department of Health & Social Security [1981] AC 800Statutes are interpreted in light of the state of affairs known to Parliament.Cited to justify examining the historical context when construing section 58AA and section 419A.
Giles v Thompson [1993] 3 All ER 321 / [1994] 1 AC 142Historical treatment of champerty and public-policy limits on litigation funding.Provides background showing evolving judicial acceptance of third-party funding.
Arkin v Borchard Lines Ltd [2005] EWCA Civ 655“Arkin cap”: a funder’s adverse-costs exposure is normally limited to the amount funded.Illustrates courts’ pragmatic accommodation of commercial funders.
Excalibur Ventures LLC v Texas Keystone Inc (No 2) [2016] EWCA Civ 1144Further example of costs liability of funders when a case fails.Cited as part of modern costs jurisprudence on litigation funding.
Lexlaw Ltd v Zuberi [2021] EWCA Civ 16Enforceability of a solicitor-client DBA; interpretation of 2013 DBA Regulations.Shows courts’ reluctance to permit technical challenges that defeat meritorious fee agreements.
R (Factortame) v Secretary of State (No 8) [2003] QB 381Damages-based funding by non-lawyers not contrary to public policy.Key authority demonstrating judicial approval of contingent funding agreements.
Chapelgate Credit Opportunity Master Fund v Money [2020] EWCA Civ 246Discretion to depart from the Arkin cap; growth of funding and ATE markets.Used to show litigation funding is now mainstream.
Merricks v Mastercard Inc [2020] UKSC 51Complexity and cost of CAT collective proceedings; access to justice rationale.Underlines necessity of funding for large opt-out claims.
Carnegie v Household International Inc (2004) 376 F.3d 656 (US)Class actions enable claims that would otherwise never be brought.Quoted (by dissenter) to highlight economic rationale for collective proceedings.
Meadowside Building Developments Ltd v 12-18 Hill Street Management Co Ltd [2020] Bus LR 917Funding agreement in adjudication held to be a DBA because the funder managed the claim.Distinguished; shows funding plus management differs from passive funding.
Akhmedova v Akhmedov [2020] Costs LR 901Family-law enforcement funding; courts supportive of third-party funding absent misconduct.Illustrates judicial endorsement of compliant funders adhering to industry codes.
Weisz v Weisz [2019] EWHC 3101 (Fam)Third-party funding is “necessary and invaluable” for access to justice.Cited to reinforce policy favouring funding.
Young v Young [2013] EWHC 3637 (Fam)Court should not discourage funding where legal aid is unavailable.Supports positive approach to funders.
Hamilton v Al Fayed (No 2) [2003] QB 1175“Pure” altruistic funders not automatically liable for costs.Shows judicial differentiation between types of funders.
Oxfordshire County Council v Oxford City Council [2006] UKHL 25“Potency of the term defined” in statutory interpretation.Applied to show ordinary meaning of “claims management” carries interpretative weight.
MacDonald v Dextra Accessories [2005] UKHL 47Definition words retain ordinary force unless clearly displaced.Supports adopting natural meaning of “claims management”.
Phillips v News Group Newspapers [2012] UKSC 28Limits of “potency” where term lacks settled meaning.Used to contrast with term “claims management services”.
R (Project for Registration of Children as British Citizens) v SSHD [2022] UKSC 3Modern statement of purposive statutory interpretation.Cited when outlining interpretative methodology.
Littlewoods Ltd v HMRC [2017] UKSC 70Departing from literal wording to prevent frustration of statutory purpose.Guides reading of section 58AA and section 419A.
R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687Statute must be read in context and for purpose Parliament intended.Forms part of interpretative framework.
Shahid v Scottish Ministers [2015] UKSC 58Strained interpretation only to avoid absurdity.Supports rejection of over-broad reading that causes absurd results.
IRC v Hinchy [1960] AC 748; R (Edison First Power) v Central Valuation Officer [2003] 4 All ER 209; R v Federal Steam Navigation [1974] 1 WLR 505; R v McCool [2018] 1 WLR 2431Further authorities on avoiding absurd results and correcting drafting errors.Cited in discussion of the “presumption against absurdity”.
Cape Brandy Syndicate v IRC [1921] 2 KB 403Later legislation can clarify ambiguity in earlier statutes.Applied when assessing interaction between section 58AA and later regulatory instruments.
Williams v Central Bank of Nigeria [2014] AC 1189Imported statutory definitions bear the same meaning as in the parent Act.Used to analyse incorporation of section 419A into section 58AA.
R v Secretary of State ex p Fire Brigades Union [1995] 2 AC 513Minister must keep commencement provisions under review.Relied on to show section 58B’s continuing relevance even though un-commenced.
R (ZYN) v Walsall MBC [2014] EWHC 1918Later legislation may confirm the interpretation of earlier ambiguous text.Cited by analogy when reconciling section 58AA with the Damages-Based Agreements Regulations.
Winfield v Secretary of State [2012] EWCA Civ 1415“Includes” in a statutory definition does not necessarily extend to every conceivable instance.Supports narrower reading of ancillary services in section 419A.
R (Sisangia) v Director of Legal Aid Casework [2016] EWCA Civ 24Ordinary meaning of undefined statutory terms retains significance.Cited to reinforce “potency” of ordinary language.
Piper Double Glazing v DC Contracts [1994] 1 WLR 777Non-lawyers can perform ancillary litigation tasks without “conducting litigation”.Used by analogy to distinguish funders from claims managers.
Attorney General v Clarkson [1900] 1 QB 156Subsequent legislation can elucidate earlier ambiguous provisions.Support for using later instruments to interpret section 58AA.

Court's Reasoning and Analysis

Judge Rose adopted a purposive and contextual approach to statutory construction, deploying multiple interpretative canons:

  • Ordinary meaning and “potency”. The phrase “claims management services” carries its normal sense of managing a claim. Funding alone does not satisfy that description.
  • Presumption against absurdity. Reading section 419A literally would capture banks, barristers’ clerks and anyone “making inquiries”, an outcome Judge Rose deemed irrational and beyond Parliament’s intent.
  • Statutory scheme coherence. Parliament created a separate, un-commenced provision—section 58B CLSA—for regulating litigation funders. It would be “most improbable” if section 58AA were intended silently to invalidate the very agreements section 58B contemplates.
  • Regulatory context. The 2010 and 2013 DBA Regulations use concepts such as “client”, “representative” and hourly “costs”, language tailored to legal representatives, not passive funders. That drafting confirms legislative focus on lawyers, not funders.
  • Ancillary-services clause. Section 419A lists ancillary acts (financial assistance, introductions, inquiries) that are included within claims management services only when provided as part of an overall claims-management package. Standing alone, those activities do not convert a financier into a claims manager.
  • Policy considerations. Decades of case-law (e.g., Factortame (No 8), Arkin) recognise third-party funding as enhancing access to justice. An interpretation that invalidates most funding agreements would conflict with that settled line of authority and undermine collective proceedings.
  • Use of later legislation. Subsequent instruments and parliamentary materials demonstrated that legislators assumed litigation funding to be lawful and outside section 58AA, thereby resolving any residual ambiguity.

Applying those principles, Judge Rose concluded that commercial funders are not providers of “claims management services” for the purposes of section 58AA. Therefore, the funding agreements are not DBAs, need not comply with the 2010/2013 Regulations, and remain enforceable.

Holding and Implications

Proposed Holding (Dissent): APPEAL DISMISSED.

Judge Rose would have upheld the CAT and Divisional Court, leaving the litigation funding agreements intact and allowing the collective claims to proceed. The dissent emphasises that treating pure funding as a DBA would jeopardise access to justice across hundreds of cases and contradict the statutory architecture that reserves regulation of funders to the (unused) section 58B mechanism. No broader binding precedent is set by this individual opinion, but it articulates a detailed framework for distinguishing funding from claims management.