Ian is a qualified solicitor (non-practicing) in England & Wales. Having been involved in the Legal Expenses Insurance industry since November 1992, he has dealt with Before the Event (BTE) and After the Event (ATE) Legal Expenses Insurance in its various forms.

His work has included underwriting for ATE cover, a number of the early competition claims seeking damages for abusive anti-competitive conduct being brought then both in the High Court and Competition Appeals Tribunal (CAT) in England.

He also underwrote for ATE cover a number of group actions many of which were run under Group Litigation Orders (GLO) and other case management devices, spanning a wide variety of case types. Ian has underwritten numerous commercial litigation cases, civil fraud claims and insolvency matters.

Since 2020 Ian has acted as a broker, intermediating various insurance products relating to litigation and arbitration risks as well as intermediating litigation funding requirements where required.

Below is our LFJ conversation with Ian Coleman:

There are many strong opportunities available in the UK with excellent law firms. The use of litigation funding has become normalised in conjunction with ATE Insurance to cover the adverse costs exposure. Litigation funding is no longer seen as a tool just for the impecunious.

Opportunities range from commercial arbitration and investor state disputes to commercial litigation, civil fraud claims and of course the various forms of competition compensation claims conducted in the Competition Appeals Tribunal (CAT).

The availability of litigation funding frequently drives the law firm enquiry.

The Supreme Court decision in PACCAR remains current authority albeit that the Government has said that it will legislate to reverse the position and has received recommendation that be both retrospective and prospective. The caveat being when parliamentary time allows. However, a multiple on capital deployed (or in some cases committed) is permitted offering healthy returns for investors.

It has been suggested that ‘light touch regulation’ will be included in any such legislation or in follow-on legislation. The Lord Chancellor requested advice from the Civil Justice Council (CJC) with regards to the question of regulation. The CJC published its Final Report in June 2025. The CJC has recommended that regulation should not apply to arbitration proceedings as it should remain a matter for arbitral centres to determine whether and, if so, how any such regulation should be implemented. In Court and CAT proceedings regulation of litigation funders should be weighted according to whether the funding is provided to consumers or commercial parties.

The CJC suggests a minimum, baseline, set of regulatory requirements should therefore apply to litigation funding generally. These should include provision for: case-specific capital adequacy requirements; codification of the requirement that litigation funders should not control funded litigation; conflict of interest provisions; the application of anti-money laundering requirements; and disclosure at the earliest opportunity of the fact of funding, the name of the funder, and the ultimate source of the funding. The terms of LFAs should not, generally, be subject to disclosure.

It should be noted that the CJC specifically rejected the introduction of caps on litigation funders’ returns.

Law firm portfolio funding or case by case funding are options to consider albeit a balance of the law firm’s and their clients’ needs will be key in deciding which approach is requested. The CJC has recommended specific regulatory provisions for portfolio funding.

What is known as ‘The Arkin Cap’ continues to provide that the Court can make an appropriate decision concerning litigation funder liability for adverse costs on a case-by-case basis. For this reason, litigation funders will inevitably require that suitable ATE is in place.

It should be noted that no regulation has yet been introduced and it is debatable when there will be parliamentary time to attempt to do so. In any event regulation logically would be prospective only.

Where litigation funding is sought it is extremely common in the UK for ATE Insurance to be required as part of the package and often Capital Protection Insurance is purchased by the litigation funder. Most of the insurance capacity for these products emanates from markets based in London.

Insurance may only be sold into a territory for which the insurer has a licence. The licencing requirements are dictated by the domicile of the Proposer (the party seeking insurance).

The Insurers invariably have a licence for the UK and Europe but not necessarily for other territories. In order to maximise the choice of insurance offerings the Proposer is ideally domiciled somewhere in the UK or Europe.

Where the Litigation Funder seeks Capital Protection Insurance (CPI) domiciling the SPV in say Guernsey may have a double benefit both in terms of insurance availability (to achieve the best terms) but also to maximise tax efficiencies. Most jurisdictions levy some form of insurance tax, but those that do not may be seen as attractive to the party paying the insurance premium. Any Litigation Funder seeking to set up an SPV in a tax and licencing friendly location should of course make their own enquiries in order to satisfy themselves that both requirements are met in that particular territory.

Where the Claimant is domiciled in a location that raises licencing challenges this may be overcome by the Litigation Funder providing an Adverse Costs Indemnity via its funding SPV and obtaining the ATE Insurance to cover off that risk.

This will however generally mean that security for costs must be provided but the ATE Policy can be fortified with what has become known as an Anti-Avoidance Endorsement (AAE). AAEs have been accepted in the UK Courts and in many arbitral forums.

Notwithstanding the place of domicile of the Proposer, the insurance policies will generally be written on the basis that the policy is governed by English Law and accordingly the duty of disclosure for the Proposer will be set out in the Insurance Act 2015 for non-consumers and Consumer Insurance (Disclosure and Representations) Act 2012 for consumers.

CPI can be obtained to protect some or all the capital deployed. This can be purchased either on a portfolio basis or case by case. Both methods have their advantages and disadvantages and that discussion deserves its own separate analysis. Both do mitigate the risk of losing capital. The scope of claim circumstances is a matter of negotiation with Insurers.

Generally, the conducting law firm will require some funding of their fees. Their fees can be further insulated from risk by Work in Progress Insurance (WiP) which protects an element of base fees should the claim be unsuccessful. In some circumstances WiP may be used to curtail the funding requirement.

For bilateral investment treaty arbitrations Arbitral Award Default Insurance (AADI) may also be available.

ATE is used commonly where costs follow the event to protect the risk of the claimant and litigation funder becoming liable for adverse costs.

There has been much discussion about the CAT since the changes in 2015. Case longevity, case outcomes and distribution have been frequent topics of conversation. The question to be posed is whether ‘herd-thought’ means that good opportunities are being over-looked. That has most certainly been the experience of the writer.

The sector in the UK has a number of strong law firms, and the CAT requirements are being clarified with decisions that are now flowing through the forum.

Decisions from senior Courts have further assisted in setting out road maps for bringing and conducting such cases particularly with regards to Opt-Out and abuse of dominant position claims.

It should not be a surprise that as the new regime bedded in the earlier cases would take longer to conclude and the pathway would need to be set.

In Opt-Out cases the CAT does consider the funding and ATE packages at Certification stage together with the Class Representative’s understanding of how they work. Whilst certification can be refused on the basis of the above it does not equate in the event of certification to a blessing of the arrangements which can be revisited later.

Sensible pricing models from the outset are important. Certification will now have some regard to the merits of the claim, scope of the defined class and distribution. These can all be well managed to substantially mitigate the risk of the CAT subsequently intervening in stakeholder entitlements.

For cases that are not Opt-Out the above considerations do not apply.

The hygiene factor around funds being used to support litigation and arbitration matters is increasingly significant. Litigation Funders should be aware of this and consider the level of checks that are required in other financial sectors. Matters such as KYC, AML, UBOs and sanctions / PEP enquiries are often mandatory. This approach would be reflective of the CJC recommendations.

The confirmation that such checks have been conducted and were satisfactory could well prove to be decisive where there are competing offers of litigation funding on the table.

Jason Levine is an antitrust and commercial litigation partner in the Washington, D.C. office of Foley & Lardner LLP.  He previously served as the D.C. office head, and head of U.S. antitrust strategy, at Omni Bridgeway, a global commercial litigation finance company.

Jason’s legal background spans over 25 years in private practice as a first-chair trial lawyer and antitrust litigator in several multinational law firms.  He has tried over a dozen cases and served as lead counsel for plaintiffs and defendants in numerous billion-dollar disputes, including defending against two of the nation’s largest antitrust MDLs.  Jason graduated cum laude from Harvard Law School and clerked for Judge Randall Rader on the U.S. Court of Appeals for the Federal Circuit.

Where does litigation finance add the most value in antitrust cases, particularly given their scale, duration, and cost profile? 

As in any complex dispute, litigation finance adds significant value in antitrust cases by shifting the risk of fees and legal costs away from the plaintiff or the law firm and to a funder.  Antitrust cases are particularly well-suited to litigation finance because they can be exceptionally costly, require specialized counsel and often multiple expert witnesses, tend to have a long duration, and can involve massive amounts of discovery.

The aspects of the case where a financing arrangement adds the most value will vary depending on the funding mechanism.  If a law firm is handling a matter on a contingent fee basis, then the greatest value from financing typically comes from covering the legal costs the firm would otherwise advance on its own.  Outside a contingent fee scenario, financing is most important in paying counsel’s legal fees, although the funder may also cover legal costs.  The universal point is that, for companies pursuing antitrust litigation, financing can be very attractive because it is non-recourse, permits the company to reserve its legal budget for defensive and compliance matters that are not amenable to financing, and helps convert the legal function from a proverbial “cost center” into a revenue generator.

Funding also increases the client’s options for which counsel to retain, which is particularly important in antitrust cases given their nature.  With outside financing covering legal fees and costs, the client can focus more on the expertise and “fit” of counsel than on their billing rates.  Relatedly, litigation finance can enable a small company to hire a “Big Law” firm that doesn’t offer contingent fee arrangements, rather than potentially being limited to a firm that does.  The same point applies to expert witnesses, making the top echelon available whereas they might otherwise have been prohibitively expensive.

In short, with a meritorious case and litigation financing behind it, a small corporate plaintiff can match a much larger defendant’s litigation resources.  This benefit of leveling the playing field is very clear in antitrust cases, given their scope and cost to litigate, which helps explain why they are funded at a higher rate than most other categories of commercial litigation.

Are there specific types of antitrust claims or procedural postures where you think funding is especially well suited?

Funding is very well suited to antitrust claims where a company has opted out of a class action and is pursuing its claim independently.  This is particularly true if the opt-out occurs after the putative class action has survived motions to dismiss, if not class certification.  At either point, a funder will consider the opt-out case at least partly de-risked.

This benefits the funder because the case is less risky and will have a shorter remaining duration.  It benefits the funding counterparty because the funder’s required return should be lower, given the de-risking, leaving more of the proceeds for the client and the law firm to share.  Substantively, funding is well suited to various kinds of antitrust cases, so long as quantifiable money damages are at stake rather than solely injunctive relief.

What regulatory or legislative developments in litigation finance should antitrust litigators be paying closest attention to right now?

There is significant activity at both the federal and state level that warrants attention, although not specific to antitrust cases.  At the federal level, bills have been proposed that would seek to compel detailed disclosures of the existence and details of litigation financing arrangements, including to the adverse parties.  Another bill would seek to largely shut down the involvement of foreign entities in litigation finance, both by prohibiting the practice by certain state-affiliated actors and also by requiring extremely detailed disclosures by others.

Although it’s fair to say that none of these proposals are a very high legislative priority, they definitely warrant attention, given how far the proposed federal tax on litigation finance proceeds progressed in 2025.  That tax has not been formally re-introduced yet, but that is another possibility that would merit watching.

As the midterm elections in 2026 draw closer, the prospects for movement on any of these proposals will likely decrease, with the exception of a possible “midnight rider” slipped into a year-end Appropriations bill.  That’s something else to watch out for.  In addition, the Advisory Committee on the U.S. Federal Rules of Civil Procedure is considering potential Rule amendments involving disclosure of litigation funding uniformly in federal cases, and this is worth monitoring as well.  Given all these developments, defendants have an increased incentive to seek information about litigation funding arrangements through discovery requests.

At the state level, at least a dozen states are perennially considering different disclosure regimes and regulations that would complicate the use of litigation finance.  Some of this is performative, having failed multiple years in a row in some states.  I would keep a particularly close watch for state-specific versions of the litigation finance tax that failed to pass in the U.S. Senate last year, especially in California, New York, Texas, Florida, and Illinois.

How do you expect evolving disclosure or taxation proposals to affect big firm strategy in funded matters?

Certainly, large law firms that are considering funding arrangements, or that have them already, will be monitoring the regulatory landscape for important developments.  I would anticipate that the imposition of new regulations in general will cause firms to focus closely on compliance, both on their part as either funded counterparties or as counsel to them, and also on the part of funders.  This might lead to a tendency to favor larger, more established funders that have robust internal compliance capabilities.

Law firms and their funded corporate clients will also likely scrutinize funding agreements even more carefully.  Similarly, if any new industry-specific taxes are enacted, law firms will likely focus on funders’ ability to adapt their return structures to minimize the passed-through impact.  Pricing in line with the market is always important, but potential tax changes could highlight this even more.  Greater regulation could also lead to further consolidation in the litigation finance industry, leaving fewer – but likely larger – companies in the space, making it all the more important for law firms to seek out whatever edge a particular funder can provide in a deal.

I would not expect any new disclosure or taxation regimes to change the way law firms actually litigate their cases, with the exception of disclosure requirements giving rise to more discovery efforts aimed at funding arrangements.  It is possible that a new, aggressive disclosure regime could give certain companies pause about pursuing funding, but I also consider this unlikely to change law firm litigation strategy.

Based on your own transition, what advice would you give Big Law partners or senior associates considering a move into litigation finance or a finance adjacent role?

I would advise them to be patient and to focus on relationships.  Litigation finance companies do not have a classic recruiting pattern like law firms do.  Headcounts tend to remain steady, with opportunistic hiring for purposes of expansion or replacement of departing personnel.  I know several people whose transitions from a law firm into litigation finance took over a year because there simply weren’t openings available.  In that situation, it’s important make contacts at one or more companies and check in with them periodically, because expressing interest in a position and staying top of mind can make all the difference.  A warm internal introduction is much more valuable than cold outreach.

I would also recommend gaining direct exposure to litigation finance before seeking out a position.  Funders will favor partners and associates who have previously handled funded litigation or at least negotiated deal terms with a funder.  This not only credentializes the job-seeker’s interest in a role, it also demonstrates some familiarity with the industry and how it operates.  Relatedly, job-seekers should learn as much as they can about the funder as possible before approaching it.  What kinds of cases does it fund?  Does it have geographical limits, or funding amounts that it favors?  This information is often on the company’s website, and knowing it shows diligence and also helps ensure fit.  For the few publicly traded funders, I strongly recommend reviewing investor materials and annual reports before interviewing.

In addition, particularly for partners, I would emphasize the importance of objectively assessing one’s network and prospects for helping to generate deal flow.  Similar to a law firm, at most funders, origination is a key aspect of a more senior role.  What is your base of potential funding clients?  Do you have strong contacts with litigation business generators at multiple law firms, or with well-placed in-house counsel at companies with suitable litigation?  Are your contacts limited to particular kinds of litigation, and if so, are those ones that tend to receive funding?

These are important questions to answer as granularly as possible before approaching a funder for a job.  For more junior lawyers, consider where you would fit in the funder’s structure, and how you can add value, particularly in the nuts and bolts of underwriting cases.  Here, again, subject matter is important.  Expertise in areas of law that don’t yield funded cases is unlikely to support the business care for a new hire.