The Supreme Court left in place the common-law position on assignment of causes of action, while Chief Justice Frank Clarke said significant change should come through legislation and urged the legislature to address barriers to access to justice.
In a separate judgment delivered on 31 July 2018, Clarke said he agreed fully with the legal analysis in Mr Justice O’Donnell’s judgment and with the order O’Donnell proposed. The source provided here does not set out that order or the appeal’s precise disposition.
Clarke said complex litigation, particularly commercial cases, had made disclosure more burdensome as electronically stored information grew. He said people and entities who had suffered wrongdoing could be unable to vindicate their rights because of the cost of court proceedings, an issue he said required urgent legislative consideration.
He distinguished third-party funding from assignment. With funding, the party said to have suffered the wrong retains the cause of action, although a funder may receive part of the proceeds if the claim succeeds. With an assignment, Clarke said, the assignee receives the entire beneficial interest in the proceeds and maintains proceedings despite not having suffered the original alleged wrong.
Clarke said there might be legitimate policy reasons to regulate those arrangements differently. He warned that allowing unregulated funding or assignment as a response to litigation costs could create problems, including an unregulated market in causes of action. In his view, courts could not design a carefully balanced regulatory scheme; the legislature was primarily responsible for deciding whether either arrangement formed part of a solution and what rules should govern it.
He acknowledged that corporate share sales or restructuring might transfer the economic benefit of a claim in substance while leaving the claim with the company said to have suffered the wrong. But he said that possibility did not justify changing the law by judicial decision.
Clarke concluded that the existing common-law position identified by O’Donnell should remain unless legislation changed it. He added that courts might eventually have no option but to act if it became clear the legislature was making no real effort to address the access-to-justice issues raised by the appeal.