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Commercial Legal Innovation

Using Data Analytics to Maximize Efficiency in Litigation Funding Proposals

As in-house counsel and corporate legal departments grow more comfortable with the prospect of utilizing third-party funding, litigation funders are keen to provide education about best practices for securing funding.  In a blog post from Omni Bridgeway, Matt Leland and Carrie B. Freed examine the use of in-house data analytics for companies who are looking to secure third-party funding for their litigation strategy. As the authors explain, for in-house counsel who are seeking litigation funding ‘it is imperative to assess the economics of a case with clear eyes’, and this can be best achieved ‘partnering with their business analytics colleagues.’  By collaborating with their data analytics team, Leland and Freed argued that corporate legal teams can create ‘several efficiencies when preparing the litigation funding proposal.’ The five efficiencies that can be achieved are as follows:
  • Pressure-test damages evidence
  • Avoid discovery emergencies
  • Familiarize personnel with the litigation
  • Foster collaboration with colleagues
  • Generate reliable budget forecasting
Leland and Freed highlight that as ‘businesses accumulate copious amounts of data’, they already have a wealth of information that can be used to produce accurate quantitative analyses of potential losses and also build predictive models for likely outcomes. Whilst this use of data analytics will not be able to provide foolproof assessments, ‘the company can better demonstrate to a litigation funder where the recovery risks lie and what resources might be necessary to strengthen the business’s litigation position.’
Commercial Legal Innovation

The Role of ATE Insurance in the Post Office Scandal

The Post Office scandal has brought the role of litigation funding in opening access to justice to the fore, with the media coverage generating fresh opportunities for funders to talk about their vital role in supporting victims of a miscarriage of justice. However, it is equally important to recognise the role that litigation insurance played in supporting the sub-postmasters legal campaign. In an article for Insurance Post, Alan Pratten, chair of M&A, litigation and tax insurance solutions at Gallagher, provides new insights into the use of after-the event (ATE) insurance in the postmasters litigation. Pratten goes into the nuances and challenges that were overcome as an insurance broker, working in tandem the postmasters legal team which was led by James Hartley, partner at Freeths. Pratten explains that the claimants’ legal teams had struggled to secure ATE initially, with one of the primary issues being that ‘many of the claimants, owing to the findings of the Horizon software, had criminal records, having been convicted of fraud, theft and false accounting.’ Insurers were therefore naturally averse to involving themselves with a case involving fraud, which was compounded by the fact that ‘the majority of existing ATE policies would have been nullified due to some claimants having previous convictions.’ Pratten goes on to detail how Gallagher worked with a panel of UK and US insurers to craft sufficient ATE insurance cover for the sub-postmasters, which involved ‘working with a panel of insurers and reinsurers and tailoring the policy wording in 85 different areas.’ He describes the case as setting ‘a new precedent for ATE in the industry’, and emphasised that the bespoke nature of this policy shows ‘that standardised policies are rarely the best fit and that clients need an insurance broker that understands, and can cater to, their unique circumstances.’
Announcements Commercial

Omni Bridgeway Releases Market Update

Omni Bridgeway Limited (Omni Bridgeway, OBL) (ASX:OBL) announces an update on income and income yet to be recognised (IYTBR) from matter completions as well as provisional impairments of certain investments. Positive developments[1]
  • Following the 31 December 2023 period end, approximately A$48.9 million investment income has been generated, with A$18.4 million provisionally attributable to OBL (excluding performance fees on these completions):
  • Completion of three investments generating approximately A$28.1 million of income recognised (MOIC of 2.02x; IRR of 125%).
  • In principle settlement of three investments resulting in approximately A$20.8 million IYTBR.
  • This is incremental to the 2Q24 Investment Portfolio Report disclosures of A$187 million investment income generated in 1H24 from A$147.9 million income recognised and A$39.1 million IYTBR, with A$32.0 million provisionally attributable to OBL (excluding performance fees on these completions).
  • The A$289.7 million cash and receivables balance at 31 December 2023 does not include any cash proceeds from the additional matters stated above.
Negative developments
  • Case developments during the financial year to date (FYTD24) in OBL’s investments in associates have resulted in a A$14.9 million reduction of the carrying value of the OBL residual share. This mainly relates to a positive judgment for a Fund 1 investment, but at a significantly lower than expected amount. The judgment is subject to various appeal proceedings.
  • Case developments during FYTD24 in litigation investments classified as intangible assets have resulted in a A$33.2 million (A$12.9 million attributable to OBL) reduction of the carrying value. This mainly relates to adverse milestones associated with a funded law firm portfolio for which returns are cross collateralised. While OBL’s investment in this portfolio has achieved a positive return on invested capital overall, the remaining carrying amount is considered impaired under OBL’s accounting policies. Appeals are being pursued and may result in a reversal of the full impairment due to the cross collateralisation.
  • Case developments during FYTD24 in litigation investments classified as purchased claims have resulted in a A$6.3million (A$1.1million attributable to OBL) reduction of the carrying value. This mainly relates to two litigation investments for which the anticipated income is lower than expected or the anticipated duration has extended.
  • The above reductions in the carrying value of the investments are non-cash items.
The amounts stated above are subject to completion of the audit process and will be confirmed in the 1H24 Group Consolidated Financial Statements which will be released on 29 February 2024.  
  1. Fund 5 is not consolidated within the Group Consolidated Financial Statements, but the aggregate income figures in this section include 100% of any Fund 5 income recognised/IYTBR.
Consumer

Let’s Set The Record Straight: Consumer Legal Funding is Not Litigation Finance

The following piece was contributed by Eric Schuller, President of the Alliance for Responsible Consumer Legal Funding (ARC). Consumer Legal Funding, in its various forms, is pretty mundane. It covers living expenses, such as rent, food, clothes and keeping the lights on. It might even enable a family to provide Christmas or birthday gifts for their children. In every case, its sole purpose is to help individuals and families alleviate the cash-flow problems that arise in the wake of an accident or other tragic circumstances, while the individuals and families are seeking compensation for their situation. It has nothing to do with financing of the litigation. What is happing is that groups and individuals who are not taking the time and effort to know the differences between the two different products and are lumping them together. They are saying all transactions where a party to litigation receives any monetary resources from a non-party are considered Third Party-Litigation- Financing (TPLF). It paints a bleak picture of “foreign adversaries . . . undermining U.S. national economic and security interests through the infiltration of the American litigation system,” and it is the end of the free world as we know it. Consumer Legal Funding is nothing like that, it helps a consumer meet their financial obligations while their legal claim is making its way through the justice system. It does not pay for deposition cost. It does not pay for legal fees or expenses. Most of the time the funds go to help a consumer who has had a car accident bridge the financial gap, but there are other times where it goes to help a person who was wrongfully convicted and spent nearly two decades of their life in prison for a crime they did not commit. Consumer legal funding helped them get their life back in assisting with living expenses while they got the justice they so justly deserved. It helped a Police Officer pay to keep a roof over their family’s head while they had their day in court after being wrongfully discharged. Then the case of a single mother of three who was going back to college to make a better life for her children and had to move out of their home because of a toxic mold infestation. She used consumer legal funding to pay for a mobile home so she and her three children could live in a safe, toxic-free, environment while the situation was fixed. There is the case when a 16-year-old was made a quadriplegic due to medical negligence. The family had to modify their home to make accommodations to care for their loved one. Consumer legal funding was the only way they were able to take care of their teenager while the case made its way through the long legal system. Another was a woman was involved in a car accident and her teeth were shattered because of the accident. She used consumer legal funding to get a new set of teeth. She said, “it gave me my smile back”. Finally, there have been times where consumer legal funding was used to help pay for funeral expenses of a loved one that was tragically killed in an accident. Sadly, some families had no other means of taking their loved one to their final resting place if it had not been for consumer legal funding. But what is happening are those groups and individuals that do not take the time, or want to take the time, to learn what consumer legal funding really is. They hear terms like, “corrupting the legal system”, “leads to filing frivolous litigation” and the latest is “foreign governments are leading to international sabotage of our courts”. Then charge ahead saying “the sky is falling; the sky is falling”.
  • How does giving money to a single mother so she can have her children live in a toxic free environment lead to “international sabotage”?
  • How does allowing a person who spent nearly 2 decades of their life living in 48 square foot space corrupting the legal system?
  • How does allowing a person to get their smile back lead to frivolous litigation?
Litigation Financing is just that “financing of the litigation”. It is used to pay for lawyers. It is used to pay for depositions. It is used to pay for expert witnesses. It is used to pay court costs. None of which consumer legal funding does. In fact, in the legislation that we have promoted we specifically state the funds we provide to a consumer cannot be used for those purposes. Don’t be fooled by someone who is throwing out buzz words that make one think we are on the brink of judicial destruction by confusing Consumer Legal Funding with Litigation Financing. They both may be fruit. But one is an apple and one is an orange. Eric Schuller President Alliance for Responsible Consumer Legal Funding http://arclegalfunding.org/
Announcements Commercial Deals

Westbrooke Associates Unveils a Highly Sought-After Investment With Capital Protection

Westbrooke Associates, the official agent for prominent and proven track record investments, is thrilled to announce its latest portfolio prospect. Providing a broad spectrum of options for those seeking attractive returns, Westbrooke Associates is inviting professional investors to invest in an opportunity that offers generous pro-rata returns with capital protection. Showcasing a groundbreaking investment realm in a venture that goes beyond the ordinary, Westbrooke Associates is working in conjunction with KWS Litigation (a trading style of KWS Law) presenting an extraordinary opportunity in British litigation funding. Litigation funding, also known as legal financing or third-party funding, allows investors to support legal cases without the financial burden for claimants. Enabling litigation to pave the way for justice, this opportunity opens up an intelligent avenue for diversifying investment portfolios, providing a powerful tool to level the playing field. Recent market research highlights how the global litigation funding investment market has demonstrated substantial growth potential, valuing the market at approximately $12.2 billion in 2021 and anticipating it to surge to an impressive $25.8 billion by 2030. Following a landmark judicial review, KWS Litigation offers access to both justice and financial growth by inviting individual investors to finance mis-selling loan agreement legal cases and business energy contracts. Meeting the demands of a disruptive and evolving industry, KWS Litigation--a trading style of KWS Law Limited, operates as an Alternative Business Structure, providing choice, innovation and transparency. Regulated by the Solicitors Regulation Authority (SRA: 830165), KWS Litigation is a client-centric law firm focused on identifying legitimate litigation claims. Their mission is to rectify courtroom disparities between individuals and large corporations. The stringent claimant selection process is also a testament to the firm's commitment to excellence. In a symbiotic relationship that benefits mutual clients, the Claims Management firm, Addlington-West Group, authorised and regulated by the Financial Conduct Authority (FRN:838665), collaborates with KWS Litigation as an Introducer of Clients. Leveraging this partnership, Addlington-West Group has access to a pool of legitimate and meritorious prospects actively seeking funding and assistance in pursuing claims of financial mis-selling. Coupled with legal opinions from independent barristers confirming the highest likelihood of a successful outcome, each investment benefits from legal expertise, case due diligence and streamlined process management. Holding the promise of significantly larger returns compared to traditional alternative asset classes and in stark contrast to the extended timelines associated with typical private equity deals, this opportunity presents a return in approximately 12 months. Moreover, this unique and potent avenue stands independently from conventional financial markets, market fluctuations and volatility. Safeguarding the investor journey at every turn, upon completion of each successful case, the investor receives the principal amount and exceptionally high pro-rata returns. Even in the unlikely event of an unsuccessful case, the principal amount is secured via an insurance bond, offering unparalleled protection. Additionally, investor flexibility means the option to reinvest at any stage, providing each investor with the autonomy to navigate their investment with confidence. Throughout the process, KWS Litigation meticulously adheres to litigation and consumer protection regulatory requirements, ensuring compliance and transparency at every step. Discussing the new opportunity, Company Director for Addlington-West Group Magaret Bladon says: “I envision a future marked by even greater success and positive transformations. Our commitment to excellence, coupled with our unwavering dedication to client satisfaction, positions us as industry pioneers. I predict a future where our innovative approaches and client-centric strategies will continue to redefine the landscape. Together, we are poised for a journey of unparalleled success, achieving new milestones and setting industry standards for years to come.” Neil Davis-Berkeley, Managing Director for KWS Law says: “We believe in providing individuals with a voice, especially those who have been marginalised or faced injustices. Litigation funding ensures everyone, regardless of financial means, has access to justice and aligns with our goals for fairness, transparency and the right to seek restitution. Our commitment is unwavering – to bridge the gap between individuals and powerful entities, championing a legal system where justice is accessible to all." Westbrooke Associates facilitates strategic sector engagement, allowing investors to align their interests with industries they are passionate about, from promoting sustainability and social impact to embracing technological innovations. As seasoned and strategic players, this opportunity boasts a robust track record, specialised expertise and a meticulous approach, positioning it as a formidable choice for qualifying investors. If you want to seize the opportunity to be part of a venture that not only stands at the forefront of legal innovation but also promises exceptional returns, contact Westbrooke Associates to request the Investor Memorandum. Alternatively, you can visit www.westbrookeassociates.com to learn more, email info@westbrookeassociates.com or telephone 0203 745 0294.
Announcements Commercial Deals

New Research Shows Businesses Increasingly Open to Reframing Legal Department from Overhead to Capital Source

Burford Capital, the leading global finance and asset management firm focused on law, today releases new independent research demonstrating that an increasing number of businesses are recognizing litigation portfolios as value sources and are becoming more open to tools that help them reframe the legal department from overhead to capital source.

In the nearly 15 years since Burford’s inception and in the wake of the last great recession, how businesses view their litigation and arbitration portfolios has drastically changed. Pressures on cost management have been persistent through turbulent economic times, Covid, supply chain constraints, geopolitical tensions and slow economic growth in major economies. To better understand how in-house lawyers and finance professionals expect these dual issues of cost management and value generation to evolve in the years ahead, Burford commissioned independent research with 400 GCs, heads of litigation, senior in-house lawyers, CFOs and other leaders responsible for litigation decision-making in their companies.

Highlights from the research include:

  • Businesses' already significant investment in litigation is growing: 43% of GCs say litigation spend will grow at least 25% in the next five years.                 
  • GCs and CFOs are aligned in seeking innovation for the legal department: More than half of businesses (55%) either have an affirmative recovery program (18%) or intend to build one (37%)—making it all the more important that best practices are in place to manage costs and optimize outcomes.
  • GCs and CFOs agree that collaboration is needed but differ on its extent: 70% of GCs and CFOs say it is important that the legal department find new ways to recover value—signaling a shared desire to reframe the legal department as a capital source. However, three times as many in-house lawyers as finance professionals say the decision to pursue potential claims is generally left to legal with little input from finance.
  • Legal finance is a key tool and finance has an important role in leveraging it: Almost three quarters (73%) of all respondents say their organizations have used legal finance (39%) or would consider doing so (34%), and more than two thirds (67%) of finance professionals feel that legal can increase its value to the business by using tools like legal finance.

Christopher Bogart, Chief Executive Officer of Burford Capital said: “The trend of ‘corporate finance for law’ is growing, as confirmed by this research and our own business, given that more than 50% of our commitments are now with corporates. That’s due to the impact legal finance can have on reducing the impact of litigation on the P&L and business leaders’ desire to use their capital to maximize shareholder value, not pay lawyers. This marks our 15th year in business – and while the legal field is generally slow to change, this research reinforces that CFOs and GCs are thinking about their legal departments differently, and Burford is laser-focused on helping companies reframe the legal department more as capital source than overhead.”

The Litigation Economics: CFOs and GCs weigh in on best practices in optimizing legal department value survey can be downloaded on Burford’s website. The research was conducted by GLG from December 2023 – January 2024.

About Burford Capital

Burford Capital is the leading global finance and asset management firm focused on law. Its businesses include litigation finance and risk management, asset recovery and a wide range of legal finance and advisory activities. Burford is publicly traded on the New York Stock Exchange (NYSE: BUR) and the London Stock Exchange (LSE: BUR), and it works with companies and law firms around the world from its offices in New York, London, Chicago, Washington, DC, Singapore, Dubai, Sydney and Hong Kong.

For more information, please visit www.burfordcapital.com.

Commercial Regulatory Issues

An Overview of Litigation Funding in Switzerland

When the European litigation funding market is discussed, it is perhaps unsurprising that these conversations are largely focused on third-party funding opportunities within member states of the European Union. However, outside of the EU, there is potential for Switzerland to become one of the continent’s most interesting jurisdictions for the adoption of third-party funding services. A blog post from Swiss Legal Finance (SLF) provides an overview of third-party litigation funding in Switzerland, examining the potential for the local market to grow, and outlining the best use cases for litigation finance in the country. The article begins by noting that whilst litigation funding has existed in Switzerland for the last 20 years, we have not seen widespread adoption of third-party funding services with ‘only a handful of funders currently active’. However, SLF point out that this may be change in the near future, ‘in part because local asset managers are becoming increasingly interested in litigation funding as an investment vehicle.’ The current state of litigation finance in Switzerland is a market that is unregulated yet recognised by Swiss law, with the Federal Court going as far as stating that there is a ‘ethical obligation for lawyers to inform their clients of the existence of TPLF.’ The post also explains that the Swiss legal model avoids some concerns around third-party funding that arise in other jurisdictions, noting that a funder’s presence has ‘no impact on lawyer-client privilege.’ This is because the Swiss system allows for legal documents to be shared with third parties without any requirement to disclose those documents to the defendant. As for the types of Swiss proceedings that litigation funding could be best suited for, SLF suggest that beyond domestic litigation, ‘domestic and international arbitration proceedings are also an attraction, because they often offer a substantial potential payout and take less time than litigation proceedings.’ SLF acknowledge that as class actions do not currently have a strong foothold in the country, there is little room for funded opportunities in this area. However, they also suggest that there is still a wide array of potential use cases, including divorce and inheritance cases, or even defendant funding.
Commercial Regulatory Issues

Nadhim Zahawi Calls on Government to Protect Access to Litigation Funding

Whilst the Supreme Court’s PACCAR ruling has been viewed as a low point for the UK litigation finance industry, the subpostmasters scandal appears to have drawn public attention to the importance of third-party funding. In another example of a prominent public figure calling for action to reverse the effects of PACCAR, the UK’s former Chancellor has called for action to ‘ensure full access to litigation funding.’ In an op-ed published by City A.M., Nadim Zahawi, MP for Stratford-on-Avon and former Chancellor of the Exchequer, argues that the Post Office scandal has demonstrated the crucial role that litigation funding plays in supporting ‘unfairly maligned groups’ like the subpostmasters. As many industry commentators have previously noted, Zahawi suggests that the elevation of this scandal into the public spotlight ‘has given the government the vital push it needed to speed up the process to ensure they receive justice.’ Describing the Supreme Court’s PACCAR ruling in damning terms, Zahawi says that without corrective government action, the decision ‘could have catastrophic and far-reaching consequences for access to litigation funding.’ Whilst he praises the government’s efforts to speed up the provision of compensation to the Post Office victims, Zahawi emphasises that this corrective action ‘must include ensuring that the next Mr Bates can obtain justice before parliamentary time runs out.’
Commercial Regulatory Issues

Irish High Court Ruling Rejects Allegations of Third-Party Funding in Tax Claim

As the third-party funding of litigation is still prohibited in Ireland, there are few opportunities to examine issues around funding arrangements in this jurisdiction. However, a new piece of analysis looks at a court decision which ruled on allegations that a claimant’s engagement with its lawyers amounted to a third-party funding agreement. A blog post by Lisa Carty and Sarah Twohig from Pinsent Masons examines a judgement handed down by Mr. Justice Michael Quinn in the High Court of Ireland, which dealt with allegations that fee arrangements between a plaintiff and their lawyer ‘amounted to a champertous contingency fee agreement.’ These allegations arose in a dispute between the Collector General of the Revenue Commissioners (Revenue) and two landlords, over unpaid taxes on rental income.  The defendants, Paul Howard and Una McClean, argued that Revenue’s agreement with its lawyers should be classified as a third-party funding agreement due to a clause that stipulated ‘the lawyers would only be paid if legal costs due to Revenue were recovered from a relevant taxpayer.’ Howard and McClean argued that if a costs order were made in the case, then the lawyers would be effectively paid a share of both the tax debt and the legal costs. However, Mr. Justice Quinn ruled that ‘the proceeds of the litigation process were the unpaid taxes, surcharges, and interest, not the costs.’ Therefore, the agreement did not violate Ireland’s prohibitions on champerty, as the clause at issue ‘did not allow a bonus or improper profit, because the lawyers had a right to their costs.’ Carty, a partner at Pinsent Masons, emphasised that the High Court’s decision “should act as a reminder to firms that any innovative funding arrangements may ultimately be scrutinised by a court to determine whether they constitute illegal third-party litigation funding.”  Twohig, a senior associate at the firm, added that until there is any reform of Ireland’s existing limitations on third-party litigation funding, “it is important that firms are mindful that their engagement terms cannot be interpreted as allowing profit from the proceeds of any litigation, other than the costs fairly due.”