Guy Nielson is a litigation lawyer with over 25 years’ experience of private practice and in-house counsel litigation and contentious regulatory experience. For over 7 years, he was Global Joint Head of Litigation and Regulatory Enforcement at HSBC Holdings plc with responsibility for managing the Group’s global exposure to material litigation, regulatory enforcement, and investigations, across the UK, Europe, North America, Latin America, the Middle East, and Asia Pacific.
Stuart Hills is a finance lawyer with over 25 years’ experience in legal private practice. He was a partner for over 12 years for three major law firms, specialising in private and public acquisition finance, project finance and restructurings. His wealth of experience offers clients unique perspectives on the financing and structuring of a broad range of legal finance solutions.
Below is our LFJ Conversation with Guy and Stuart:
With your extensive experience in private practice and in-house counsel, what motivated you to found RiverFleet, and what is your vision for the company’s future in the legal finance market?
For the last couple of years, we have been looking into the legal finance industry. It is an exciting market, nascent markets often are, but we have seen it come under increasing attack from various parties.
The industry needs to come together to deal with these threats whilst at the same time advocating for a market regulatory structure that is going to allow for the growth of a world leading litigation finance industry, second to none.
The legal finance market is not without its challenges. It is not the easiest market to analyse. Data is not always forthcoming. As a result, it is not easy for interested investors to enter the market. However, there are investors who are most certainly interested in joining that market, but they need help in doing so.
Our work over the last couple of years also led us to the view that the industry may well be at an inflection point. We believe it is perfectly possible that there will be some funder consolidation. We believe that funds will get increasingly sophisticated in the way they manage their balance sheets. The variety of insurance products has multiplied and, although there have been one or two challenges, we expect that trend to continue.
So we are seeing an industry that is potentially on the edge of massive change. Change brings challenges and it also brings opportunities. With our many years of experience in litigation, finance and investment, we felt that we could offer help and support to all stakeholders in the legal finance market to help navigate that change.
We have aspirations to make a real difference for clients in helping them achieve their goals, and to show thought leadership in a fast-evolving market to help clients navigate some choppy waters.
2. RiverFleet specializes in the global Legal Finance market. What are the key trends you’re observing in this market right now?
Political and regulatory scrutiny
The legal finance industry is currently under political and regulatory scrutiny in particular in the UK and the US, which could have significant ramifications for how funders operate in those markets.
The Civil Justice Council has recently published its final report in respect of its review of litigation funding in the UK, making 58 recommendations for a regulatory overhaul. The Tillis proposal is for the US litigation finance sector to face a substantial tax hike on litigation finance profits.
At the heart of the debate is an ethical consideration of the industry’s role in promoting access to justice. Whether in the UK, the industry can really be trusted to provide fair and proportionate outcomes for consumers and what level of regulation is required to best support the market and to protect those that use it. Whether in the US, the preferential tax rates typically reserved for long-term investment income are justified, or whether litigation finance inflates settlement values and prolongs litigation timelines.
We believe we need to dispel any notion that litigation funding is a dirty answer to an access to justice problem and win the argument that what the industry has to offer is a blessing.
We have to win the argument that the legal finance industry offers broader benefits in respect of the financial opportunities and risk solutions it offers to investors, corporates, law firms, and insolvency practitioners to name but a few, and the positive impact it has on the prosperity and growth of the economy.
Secondary transactions
Duration risk continues to be a major issue for funds and their investors. Case investments do not always stick to a simple predictable timeline. Appeals can take time, sometimes a long time, sometimes longer than the fund term we would all ideally want.
Secondary transactions are a key component in offering an option for funds faced with duration risk concerns.
We need to continue to develop a secondary trading market that works for all stakeholders.
Insurance market evolution
The insurance market now offers a multitude of bespoke contingency risk solutions for the legal finance industry, including;
· After the Event Insurance
· Security for costs
· Own fees cover
· Contingency fee insurance
· Cross undertakings in damages
· Judgment enforcement
· Arbitration award default insurance
We would like to think that as the market continues to evolve, the synergy between insurance and legal finance will drive further sophistication and reshaping of litigation funding into a forever more accessible and mainstream financial tool.
We recognise that not all products have been successful, and we recognise that for some the relationship between the insurance industry and the legal finance industry may at times be strained. However, we remain of the view that the adoption of insurance has the potential to significantly reshape the legal finance landscape. Primarily it enhances risk management optionality, meaning that a funder can better shape the risk profile of a transaction that best suits its investor base.
Working together, the insurance industry and the legal finance industry will continue to drive product innovation, providing bespoke solutions to specific events standing in the way of a transaction.
Increased sophistication and innovation
We recognise that this is a broad heading but across the industry we are seeing an exciting increase in the use of legal finance and innovation in the way that funds are being managed.
The legal finance market has experienced significant growth and transformation as businesses and law firms increasingly recognise its value in managing litigation costs and risks and unlocking the value of hidden litigation assets.
By way of an example, we have seen an increase in patent monetisation investments, where funders have worked with companies holding patents to devise creative solutions to improve the value of patent portfolios of claims, negotiate licences with patent users to generate income streams for patent holders, and pursue litigation funding strategies against patent users who are unwilling to enter into licensing agreements.
From a corporate balance sheet perspective, there’s been an increased recognition that legal finance preserves liquidity and unlocks value from legal assets. It enhances financial ratios and supports the efficient allocation of capital. By keeping litigation costs off the balance sheet, it avoids depressing earnings. With damages awards treated as exceptional items (which do not increase earnings), even winning litigation does not enhance a corporate’s set of accounts. Litigation funding of such actions enables businesses to maintain stronger financial positions and focus strategically on their core growth and competitiveness.
We also believe that litigation funds will become increasingly active in the management of their own balance sheets (if they are not doing so already), which is why matters such as secondary transactions, co-investment partners, securitisation and other risk sharing mechanisms will become increasingly common.
RiverFleet’s website mentions expertise in litigation, finance and structuring, and investment and portfolio management. Can you provide an example of how these three areas intersect to provide unique solutions for your clients?
Sometimes these three skills do not intersect, sometimes they do, but they are three essential skills needed in this industry.
The core asset class is litigation. Having specialist litigation underwriting skills in assessing the legal merits of cases, likelihood of settlement, time duration to trial, and enforceability issues make for a good start. PACCAR is also a telling reminder of the importance of understanding the jurisdiction risk posed by legal and regulatory frameworks surrounding the enforceability of litigation funding agreements. Different jurisdictions also take radically different approaches to issues such as disclosure requirements of funding arrangements and conflicts of interest to name but two.
Litigation may be the asset class, but all good deals need more than an understanding of the asset class to be successful. How best to structure a deal given the wide variety of transaction structures available, choosing the most efficient jurisdiction from a regulatory and tax perspective, and negotiating the key financial and commercial aspects make the world of difference.
How to assess and identify the best-in-class funders with proven track records requires investment management expertise and a deep understanding of effective portfolio and risk management. How to assess investment returns, different risks and rewards associated with portfolio type (for example consumer v commercial sectors, equity v debt investments etc.) and different approaches to managing tail risk and liquidity are all essential tools.
So these three skill sets do not always interact, but they are all essential for investors, funders, law firms and claimants alike. Having them under one roof is rare.