As family lawyers we often need to refer clients to litigation funders to help not only with their legal costs, but sometimes with their living expenses too. It is sadly pretty common for one spouse to limit or prevent access to family funds to try to force their spouse into submission. Consequently such funding is a lifeline for those whose spouses behave in this bullying and controlling way.

This case probably emerges from very specific facts that are just hinted at in this brief report. The litigation funder who was looking to recover their money attempted to gain access to case papers used in the Financial Dispute Resolution Appointment. At that appointment, divorcing parties negotiate to try to resolve the financial division of their assets with the assistance of judicial input. To be effective, the Family Procedure Rules say that non disclosure of what happens in those appointments is crucial to encourage open and fruitful discussions. It was for that reason that the litigation funder's application failed here.  

What is very interesting though is the comment of the Mrs Justice Roberts who has acknowledged that the rules may require revisiting to consider whether disclosure in certain circumstances (such as here), may be permitted. The implication being that we need to acknowledge the importance of litigation funders to the family justice system. If the rules potentially prevent, or make it more difficult for funders to recover their loans,  they may not wish to remain in the market, and that would be to the detriment of many. A number of big players in the funding market have already pulled out or ceased lending so this is an issue of real significance.