Burford German Funding Sued Over Hausfeld Ownership Stake

Whilst there is much discussion about what level of disclosure should be required around litigation funding, it is rare that outsiders to a claim can gain insight into the structure of these funding agreements. However, the certification of opt-out collective proceedings by the Competition Appeal Tribunal (CAT) has offered a rare view of one such funding arrangement.

A judgment handed down by the Competition Appeal Tribunal yesterday granted the application for a Collective Proceedings Order (CPO) in the case of Bulk Mail Claim Limited v International Distribution Services Plc (formerly Royal Mail Plc). The Tribunal certified the opt-out collective proceedings, finding that the Proposed Class Representative’s (PCR) methodology “is sufficiently credible and plausible”, and further stated that it was “satisfied that there is at least a good arguable case that there has been an overcharge.”

The Bulk Mail Claim focuses on allegations that International Distribution Services abused its market dominance to overcharge customers for its bulk mail services. The proposed class is provisionally estimated to consist of 290,477 customers who purchased bulk mail retail services, with the value of the claim estimated to reach £1 billion. Mr Robin Aaronson, an economist specialising in competition policy, is acting as the director of the PCR and Asertis is providing litigation funding for the claim.

As part of its assessment of the CPO application, the CAT evaluated the terms of the litigation funding agreement between the PCR and Asertis, and found “that they do not appear to be unreasonable.” The judgment also offered some detail on the funder’s return as specified in the agreement, which is laid out below:

“In the event of success, the drawn funds will be repaid, plus a multiplier comprising two elements: a priority multiplier of 1.5x of the drawn funds and a balancing multiplier of 0.5x for the first 12 months. There is also an increase in the balancing multiplier of 0.1875 per every quarter. There is a cap of 5.75 overall, which applies to the aggregate of the priority multiplier and the balancing multiplier.”

The Tribunal also noted that the funding agreement had been amended to address its prior concerns that the agreement “did not expressly specify that prior to any settlement there should be a written legal opinion or memorandum on the proposed settlement.” Similarly, the Tribunal responded to concerns raised by the defendant that “Asertis would not be able to meet an adverse costs order”, finding that the PCR’s legal team had provided confirmation of Asertis’ financial position, bolstered by an ATE insurance policy with “a limit of indemnity of £15 million post-CPO”.

The CAT’s judgment can be read in full here.

More information about the Bulk Mail Claim can be found on its website.

Whilst litigation funders can provide the financial resources for individuals and companies to gain access to justice, the benefits that this service provides do not shield the industry from criticism; especially where lawsuits can be portrayed as putting business interests over social or environmental progress.

An in-depth article in The Guardian covers the growing trend of third-party funding supporting investor-state disputes focused on environmental regulations. In these cases funders are often backing companies who have seen their profits harmed by ‘green laws’, with a large potential upside for the funder due to the sizeable awards in play and the diminished risk of counterclaims being brought by governments.

Analysing the publicly available data from over 1,400 of these cases brought against nation states, The Guardian’s investigation details more than $120 billion in awards through claims in investor-state dispute settlement (ISDS) courts. As the article notes, this figure may be a severe underestimation of the true total, as only 34% of cases where a settlement or award was made had disclosed the financial value of the award.  Similarly, whilst the involvement of third-party funders is not always disclosed, The Guardian found at least 75 ISDS cases where such a party was involved, with more than half of those backed by investors in the UK, US or Canada.

This trend has been the target of some criticism from lawyers and arbitrators involved in these disputes, with Muthucumaraswamy Sornarajah noting that it is often “developing countries” that are the targets of claims backed by investors who see the ISDS system as “big business.” Lisa Sachs, director of the Columbia Center on Sustainable Investment, also argued that the risk mitigation offered by having a funder cover the legal costs is effectively “removing a key deterrent to bringing weak or speculative claims.”

In response to its investigation, Burford Capital was the only funder who agreed to speak with The Guardian. The funder rebuffed the idea of supporting frivolous claims, pointing out that “legal finance provides a vetting function and weeds out meritless cases: we only get paid when our clients win their cases”. Burford’s CEO, Christopher Bogart, questioned whether these kinds of cases were unique, saying that he does not think “ISDS is any more high potential or lucrative than lots of other areas of litigation.”