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How Litigation Funding Can Benefit Insurers in Subrogation and Reinsurance Claims

The business of Insurance is a complex one, full of costly legal pitfalls. This is especially true within two core components of the Insurance industry: subrogation and reinsurance. Fortunately, litigation funding provides an antidote to Insurance companies who may find themselves embroiled in legal turmoil stemming from either practice.

As noted on IMF Bentham’s website, subrogation is the act of recoupment by an Insurance company of their payment to a policy holder. The Insurance company may be on the hook to the policy holder, but can attempt to recoup their policy payout by suing the allegedly liable party. So for example, if a homeowner declares property damage, the Insurance company will pay out the requisite amount as stated in the policy, but assuming a third party is liable for that property damage, the Insurance company may pursue legal action against the third party to recoup their payout.

It goes without saying that subrogation is fraught with risk. The third party may be impecunious, therefore making collectability an issue. And there is always the risk that the litigation will go awry, despite the underlying merits. This is where litigation finance comes in. By its very nature, litigation finance mitigates risk, and in this instance allows the Insurance company to pursue meritorious subrogation claims. Similarly, funders can partner with contingency-fee law firms who take on subrogation claims from large Insurance providers on a portfolio basis, thus mitigating the law firm’s risk as well. So there are multiple avenues here where funding can be applied.

Reinsurance involves a similar circumstance. An Insurance provider may take out reinsurance on the policy the company writes (that reinsurance may in turn be reinsured; and on and on…sort of like a ‘Russian Doll’ of insurance policies). The higher the number of reinsurances, the more likely a conflict over who is liable for the payout.

Reinsurance litigation is essentially a breach of contract claim, except given the complexity, it is often decided by a judge, rather than a jury. As with subrogation, litigation finance provides certainty that legal costs will not encumber the plaintiff and ensure them access to justice.

So for any Insurance company – or law firm with a portfolio of subrogation or reinsurance claims – litigation finance is a helpful tool worth considering.

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Commercial Regulatory Issues

Who Could Regulate the Litigation Funding Industry after the CJC Review?

By Harry Moran |

As funders and law firms await the outcome of the Civil Justice Council’s (CJC) review of litigation funding later this summer, industry experts are opining not only on the potential direction any future regulation could take, but what body would be in charge of this new oversight function.

In an insights post from Shepherd and Wedderburn, Ben Pilbrow looks ahead to the CJC review of litigation funding and poses the question that if some form of regulation is inevitable, who will act as the regulator for these new rules? Drawing upon two previous reports that reviewed the funding of litigation, Pilbrow points out that historically there have been two main bodies identified as the likely venues for regulation of third-party funding: the courts or the Financial Conduct Authority (FCA).

Analysing the comparative pros and cons of these institutions as prospective regulators, Pilbrow highlights that each one has two core contrasting qualities. The courts have the requisite expertise and connection to litigation funding yet lacks ‘material inquisitive powers’. On the other hand, the FCA does not have the aforementioned ‘inherent connection to the disputes ecosystem’, but benefits from being an established regulator ‘with considerable enforcement powers’.

Exploring options outside of these two more obvious candidates, Pilbrow suggests that utilising one of the existing legal regulators may be viable due to the fact they are all ‘largely staffed by lawyers but have regulatory powers.’ However, Pilbrow notes that these legal regulators may have common flaw that would stop them taking on this new role. That flaw being the comparatively small size of these organisations, with the Solicitors Regulation Authority (SRA) still only boasting 750 employees despite being the largest of these legal regulators.

Concluding his analysis, Pilbrow suggests unless the government opts for an expanded system of self-regulation under an industry body such as the Association of Litigation Funders, the most likely outcome is for the FCA’s remit to be expanded to include the regulation of litigation funding.

The full article from Ben Pilbrow can be read on Shepherd and Wedderbun’s website.

Commercial Deals

Omni Bridgeway Announces Final Payment for Acquisition of its Europe Business

By Harry Moran |

In an announcement posted on the ASX, Omni Bridgeway announced that it had completed the final payment for the acquisition of the Omni Bridgeway Europe (OBE) business that took place in 2019. The litigation funder confirmed that 5,213,450 fully paid ordinary shares had been ‘issued in satisfaction of the fifth and final tranche of variable deferred consideration’ to complete the acquisition.

Highlighting the progress of the business over the past six years, Omni Bridgeway said that the European business ‘has been successfully integrated into the global operations of the group, creating the most diversified legal asset management platform globally, covering all relevant civil and common law jurisdictions and all relevant areas of law.’ 

The announcement also revealed that OBE has ‘achieved the defined five-year KPIs in full’, whilst the management team ‘has been fully retained.’

Commercial Deals

Burford Capital CEO Says Litigation Finance Market is ‘Booming’

By Harry Moran |

With the global economy and financial markets in a current state of uncertainty, the stability of litigation funding as an uncorrelated asset class for investors is attracting wider attention than ever.

In an interview with Bloomberg TV, Christopher Bogart, CEO of Burford Capital discussed the current state of the litigation finance market, explained why third-party funding is attractive to clients and investors alike, and addressed the common critiques that are levelled at the industry.

On the enduring appeal of litigation funding to corporate clients, Bogart said that for many CEOs and CFOs the truth is that their companies are “spending too much money today on legal fees”. He went on to say that money spent by companies on legal fees is “not doing anything that advances their core undertaking”, and as a result, “the ability to offload that to somebody like us [Burford] is very valuable.”

When asked about why the litigation finance market is thriving during the global economic uncertainty, Bogart highlighted that all of Burford’s “cash flows come entirely out of the outcome of litigation results and those are independent of what’s happening in the market, independent of what’s happening in the broader economy.” In terms of the future of litigation funding and the potential for the market to continue to grow, Bogart pointed out that between legal fees and litigation judgments there is a “multi-trillion dollar a year global market” and that whilst the industry is already “booming”,  there is still “a lot of room to run here” for litigation funders.

In response to a question on the criticisms of litigation funding and the suggestion that funders may look to prolong the duration of cases, Bogart pointed out that Burford is just like any other investment firm that is “looking for high quality assets that are going to produce a reasonable return in a short period of time.” Bogart emphatically rejected what he described as “false concerns” by opponents of third-party funding, and stated plainly: “we’re absolutely not in the business of being interested in prolonging duration or in bringing forward things that are not ultimately going to yield a good result for our shareholders”.

The full interview can be found on Burford Capital’s website.