Beyond the Mastercard Dispute: Why Class Action Funding Needs a Structural Revolution
The following is contributed by Alberto Thomas, co-founder and managing partner of Fideres Partners LLP, an economic consulting firm specializing in litigation-related services.
Innsworth Capital's opposition to the Competition Appeal Tribunal's fee award in the Mastercard settlement has dominated headlines, with the litigation funder arguing that inadequate compensation threatens the future of UK class actions. But this dispute misses the fundamental issue. The real threat to collective redress isn't judicial attitudes toward fee awards—it's the structural limitations of how litigation funding operates.
The stakes couldn't be higher. Without structural reform, the UK class action system risks permanent ineffectiveness, leaving millions of consumers without practical access to justice while allowing corporate wrongdoing to continue unchecked. The changes proposed here would dramatically increase the volume of viable class actions, reduce funding costs, and create a genuinely functional collective redress system. Failing to act now means perpetuating a dysfunctional market where only a tiny fraction of meritorious claims ever see the light of day.
Rather than debating whether courts provide adequate compensation to funders, we should ask: why does the success of the entire UK class action regime depend on the economics of individual cases? The current model represents a classic case of capital misallocation, where resources are inefficiently concentrated rather than distributed optimally across the market.
The Flawed Foundation of Current Funding
The current model forces funders to make large, concentrated investments in individual cases while hoping their due diligence can identify certain winners. This approach is fundamentally unsound, regardless of fee awards.
Diversification is essential, but it is often impossible due to capital limitations. The UK market remains fragmented, with small funds lacking sufficient capital for diversification. Many of these funds share common investors, further exacerbating concentration problems and reducing overall market capacity. Individual class actions require millions in upfront investment over the years, so most funds can finance only a handful of class action cases simultaneously. Funders spend vast resources attempting the impossible: predicting with certainty how complex legal proceedings will unfold.
This strategy fails because litigation outcomes depend on uncontrollable variables. The Merricks case illustrates this perfectly—despite being strong on allegations of anticompetitive conduct, Innsworth's £45 million investment produced disappointing results. This isn't a failure of due diligence but the inherent unpredictability of litigation.
The Mathematics of Portfolio Necessity
The solution lies in recognizing that litigation funding should operate like every other investment class: through diversified portfolios designed to achieve consistent returns across aggregate investments, not individual successes.
Successful venture capital funds expect most investments to fail, some to break even, and a small percentage to generate exceptional returns that compensate for losses. The mathematics work because diversification allows the law of large numbers to operate, reducing portfolio risk while maintaining attractive returns.
Litigation funding should follow identical principles, but this requires making tens or hundreds of investments across diverse cases, jurisdictions, and legal theories.
Market Structure as the Primary Constraint
This capital limitation creates a destructive cycle that no fee restructuring can resolve. Limited diversification forces funders to be extremely selective, reducing meritorious cases that receive backing. Meanwhile, defendants observe that only the most obvious cases receive funding, escaping accountability for misconduct below this artificially elevated threshold.
The Mastercard outcome exacerbates these dynamics not because of inadequate fee awards, but because it highlights the vulnerability of concentrated portfolios. When funders experience significant losses on promising investments, rational capital allocation demands that they either exit the market or require substantially higher returns to compensate for concentration risk.
Beyond Traditional Funding Models
Solving this challenge requires moving beyond incremental reforms toward fundamental structural change. The key insight involves separating litigation risk from funding through proven approaches that have already transformed other markets.
The optimal structure would place litigation risk—the possibility that cases fail entirely—in the After-the-Event (ATE) insurance market, where specialized insurers possess deep expertise in risk assessment, diversification, and pricing across large portfolios. A fully insured investment vehicle could then access capital through traditional financial markets: banking facilities, mutual funds, pension funds, and institutional investors.
This separation would transform the economics entirely, using methods already well-established in insurance and capital markets. Insurance companies could price litigation risk using actuarial methods across diversified books of business. Meanwhile, the funding vehicle—protected by comprehensive insurance—could attract liquidity from other investment channels, such as mutual funds and the financial sector, at attractive interest rates. This type of bifurcation of risk would likely shorten due diligence times, significantly increase the amount of litigation funding available while simultaneously reduce its cost.
Learning from Financial Evolution
This transformation would mirror the evolution witnessed in credit markets with the development of risk transfer mechanisms like credit default swaps in the 1990s. Prior to these, banks faced severe limitations because they had to hold credit risk on their balance sheets. Risk transfer mechanisms allowed separation of credit origination from risk bearing, dramatically expanding lending capacity.
The parallels to litigation funding are exact. Currently, funders must simultaneously assess legal merit, manage litigation risk, and provide capital—constraining both capacity and efficiency. Separating these functions would deliver identical efficiency gains.
European Market Opportunities
The emergence of collective action regimes across Europe presents a significant opportunity to address these diversification challenges. As markets develop in the Netherlands, Portugal, and potentially Spain, they create additional avenues for portfolio diversification.
Rather than viewing these regimes as facing identical constraints, we should recognize their potential contribution to risk mutualization. A larger, diversified pool of cases across multiple jurisdictions would enable the portfolio approach that current market fragmentation prevents.
Time for Transformation
What's needed is recognition that effective collective redress requires sustainable funding models built on proper risk diversification rather than case-by-case selection. This requires applying established financial approaches that separate litigation risk from funding, enabling access to the vast capital pools necessary for portfolio-scale operations.
The time has come for bold innovation in UK litigation funding—bringing entrepreneurial spirit to what the City of London does best: creating imaginative solutions to complex financial problems. The City's unrivalled expertise in structuring sophisticated financial products and insurance markets makes it perfectly positioned to develop these new models. Such innovation would not only transform access to justice but could create an entirely new growth sector within the UK's service economy, establishing global leadership in a rapidly evolving field.
The transformation in litigation funding won't come from courts awarding higher fees to disappointed funders. It will come from applying the same proven structural approaches that have successfully developed every other sophisticated investment market. The question isn't whether this transformation will occur, but whether the UK will lead it or be forced to follow others who seize this opportunity first.
