Author: Dr Eleonora Ebau, Research Fellow at the Department of Law, UniTo

In March 2020, in the United Kingdom, a number of organisations specialising in legal advice and other funders created the Community Justice Fund, aimed at supporting communities hit by the financial and social repercussions of the Covid-19 pandemic.[1] Specifically, they raised funds to give them to non-profit social welfare associations who deal with issues related to immigration and asylum, community support, debt, disability, discrimination, education, employment, right to housing, mental health, public and administrative law, and social benefits.[2] Therium Access, a non-profit subdivision of the litigation funding company Therium, is among those who have taken part in the initiative. While Therium funds litigation in the civil and commercial sector, Therium Access aims – as a non-profit organisation – to facilitate access to justice by financially supporting those who otherwise would not be able to pursue or defend claims.[3]

In light of the British experience, we have asked ourselves if, in Italy, Lexcapital S.r.l. could adopt a non-profit model and focus part of its work on funding associations who deal will issues involving social justice and access to justice. Two fundamental legal aspects need to be considered here: firstly, whether Italian Law allows litigation funding, albeit indirect, for no profit; secondly, whether Lexcapital’s company structure allows it to take on non-profit initiatives.

With reference to the first aspect, we can reasonably argue that Italian Law recognises the legitimacy of non-profit litigation funding. Truth be told, currently, there is no specific regulation on third party litigation funding in civil and commercial cases that sets specific requirements such as minimum capital or the inclusion in a special register.[4] Thus, it can be assumed that, in principle, also non-profit entities can provide litigation funding as long as they comply with all applicable laws and regulations.[5] We can conclude that Italian Law admits litigation funding, where a third party with no interest in the dispute agrees to assume the legal costs of litigation, even in cases in which the funder acts for no profit.

As for the second aspect, Lexcapital is structured as a benefit corporation. This model was introduced by Law No. 208 of 28 December 2015, (art. 1, paragraph. 376 et seq.), and includes all companies that in addition to for-profit operations also pursue one or more objectives for the benefit of the community and operate in a responsible, sustainable, and transparent manner, promoting social activities that benefit people, communities, territories, and the environment.[6] Specifically, the Law requires these organisations divide their operations between: on one side the profit-oriented activities they intend to pursue, on the other the activities aimed at achieving social objectives in addition to their typical activity.[7] In light of these considerations, having chosen the benefit corporation structure, in addition to its for-profit litigation funding activity, Lexcapital can engage in activities aimed at ensuring access to justice for no profit. These activities can be carried out directly, by providing direct financial support to those who otherwise would not be able to pursue or defend claims due to lack of resources[8]; or indirectly, by providing funds to organisations that offer social welfare legal advice to disadvantaged categories of people. As mentioned, to maintain its benefit corporation status and make use of the advantages it entails, Lexcapital will have to take on activities aimed at achieving objectives for common benefit, which could most certainly include ensuring access to justice – a right protected by art. 24 of the Italian Constitution.

To conclude and answer the initial question, we can argue that the British Therium Access model can be applied in Italy, as there is no legal obstacle to recognising the legitimacy of non-profit litigation funding. Furthermore, having adopted the benefit corporation model, Lexcapital would be a pioneer in the sector, operating not just for profit but also pursuing its mission of promoting and facilitating access to justice for no profit.

[1] https://www.communityjusticefund.org.uk

[2] https://www.theriumaccess.org/news/therium-access-partners-with-other-grant-giving-foundations-to-launch-the-community-justice-fund/

[3] https://www.theriumaccess.org/about-us/

[4] D’Alessandro E. et al., Prospettive del third party funding in Italia/Perspectives on Third Party Funding in Italy, Ledizioni, 2019, p. 32

[5] Ibid

[6] see article 1(376) of Law No. 208 of 28 December 2015

[7] Guida P., La riforma del c.d. terzo settore e l’imposizione fiscale delle liberalità indirette. Il modello “società benefit”: analisi strutturale e applicazioni al Terzo settore, Fondazione Italiana del Notariato, disponibile al sito web: https://elibrary.fondazionenotariato.it/articolo.asp?art=57/5703&mn=3

[8] Here reference is made to those subjects whose financial resources are limited, but not limited enough to qualify for legal aid funded by the Government, as provided for by Decree of the President of the Republic No. 115 of 30 May 2002.