An LFJ Conversation with Neil Purslow
Neil Purslow co-founded Therium in 2008 and is a director of Therium Capital Management Limited and the firm’s Chief Investment Officer. Neil is a solicitor with over 26 years’ experience and was previously Litigation Counsel in-house for Marsh & MacLennan Companies, Inc. (MMC). Prior to this he was in practice in the City of London with US firm Reed Smith and Withers. Neil is Chair of the Executive Committee and on the management committee of ILFA, he is also a board member of the Association of Litigation Funders, the self-regulatory body for the litigation funding industry in England and Wales. Neil has given expert evidence on litigation funding and speaks regularly at conferences and is often quoted in the media on issues related to the industry and asset class. He gained an MA in Jurisprudence from the University of Oxford (1995). Neil Purslow was ranked as a Tier 1 individual in litigation finance by Chambers and Partners, Leaders League, Law Dragon and other directories. Below is our LFJ Conversation with Neil Purslow: As the PACCAR situation continues to develop, how do you think this will ultimately play out? Will the litigation funding industry face enhanced regulation in the UK going forward? The steps the Government has taken in response to PACCAR have been very positive and reaffirm the Government’s recognition of the importance of the litigation funding industry in supporting access to justice and the UK legal sector. The Litigation Funding Agreements (Enforceability) Bill (LFA Bill), which is presently going through Parliament, will reverse the PACCAR decision and reestablish the Government’s original policy intent, ensuring continued access to third-party funding in the UK. The Bill is expected to be passed before the summer recess at the end of July. The benefits of funding were highlighted throughout the recent debate on the Bill in the House of Lords, in particular that funding enables access to justice and upholds the rule of law, enabling ordinary individuals and SMEs to bring claims against better resourced companies and institutions, such as the Post Office. Several Lords even made the point that funders’ returns were fair, given the significant risks involved in funding litigation, especially against large and deep pocketed defendants. This week, the Civil Justice Council (CJC) published the terms of reference for its review of third party litigation funding. It is extremely encouraging that the CJC is committed to making litigation funding more accessible in order to improve access to justice and fairness for all, so that claimants like the sub-postmasters, can seek redress against large corporations. The litigation finance industry shares that aim. Whatever the outcome of the review, regulation will need to align with the government’s goals of furthering access to justice. The risk with any regulatory regime is that it can have unintended consequences, which could ultimately disadvantage claimants by limiting the availability of funding and curtailing access to justice. How should the industry respond to calls for regulation? Some stakeholders are suggesting that litigation funders should lead the charge here. Do you agree or disagree, and why? The industry has always taken a proactive approach to regulation through the UK’s Association of Litigation Funders (ALF) and its Code of Conduct which has been influential in setting standards in litigation funding, both for members and non-members alike in the UK and elsewhere. Litigation funders are already subject to Court’s oversight. The industry has nevertheless rightly welcomed the CJC review as an opportunity to take a fresh look at the sector and the positive role that it plays in the legal system and how the review can improve access to litigation funding. Consistent with many of the speeches in the House of Lords on the LFA Bill as well as the CJC’s stated objective, the starting point for the review must be the recognition that in the absence of legal aid and with the high cost of litigation, litigation funding is an important and essential tool to provide access to justice. Any proposals arising from the review should promote the potential for litigation finance to perform that role. The review of the industry provides an opportunity to examine any other changes that would improve the availability of funding to claimants and also deliver better financial outcomes for claimants in litigation. For instance, empowering the Courts to order defendants to pay successful claimants’ funding and insurance costs would result in significantly improved financial outcomes for claimants and disincentivise the defence strategy of running up costs to stifle claims, seen so starkly in the Post Office litigation. Any regulatory proposals should seek to address a problem and there should be clear evidence that such a problem exists. Self-regulation of the industry has worked well in practice for over 10 years and litigation finance arrangements have many checks and balances already built in, not least the involvement of lawyers advising claimants on their litigation funding arrangements. There is an important role for the International Legal Finance Association (ILFA) and the ALF to provide the CJC with an understanding of how claims are funded in practice. Any proposal for regulation must also be workable and effective. The industry witnessed the impact of the clumsy and inappropriate regulation brought in by the Liberal government in Australia which significantly impeded the proper functioning of the industry for a period until the regulation was withdrawn. The UK should be wary of falling into that trap. ILFA and ALF are ideally placed to assist the CJC in understanding the practice of litigation finance and the opportunities that exist to make the best use of its potential in upholding the rule of law. Both organisations will work constructively with policy makers to ensure that the review supports greater access to justice for consumers and SMEs and maintains the UK’s place as a leading global legal centre. Has PACCAR influenced your investment thesis at all? Are you adapting your underwriting standards in any way – either in the UK, or globally? In common with the entire UK market, Therium has had to take steps as far as possible to mitigate the potential effects of PACCAR. That in itself has been time consuming and there has been opportunistic satellite litigation which has both wasted Court time and cost money. The LFA Bill however will restore the pre-PACCAR position for both existing and future funding arrangements, which will remove the uncertainties that PACCAR has created and restore the ability of funders to offer funding to as many cases as possible. It also preserves the viability of the CAT collective proceedings regime, which is reliant on funding. The Government’s response to PACCAR has demonstrated that it understands and values the benefits that the litigation finance sector brings and that it reinforces the attractiveness of the UK as a jurisdiction in which to invest. From a public relations perspective, what more can the industry do to convince legislators and the general public that litigation funding is ultimately a force for positive change in the world? The Post Office scandal has been an important example of how civil litigation can play a pivotal role in righting a huge miscarriage of justice. In turn, the media coverage has been a game changer in increasing awareness of the vital role that litigation finance plays in providing access to justice. That example continues to resonate with the public and with legislators, with its effects felt both domestically and also internationally. ILFA plays an essential role in helping legislators and policymakers to understand litigation finance and in countering misinformation about the industry pedalled by corporate lobbyists such as the US Chamber of Commerce and their proxies like Fair Civil Justice and its forerunner, Justice Not Profit, which unsuccessfully tried to derail the introduction of the collective proceedings regime in the CAT in 2015. Their objective is to limit access to justice and frustrate litigation against big corporate wrongdoers. It is also important that the benefits of litigation funding to upholding the rule of law are appreciated more widely. Lord Sandhurst made the point in the House of Lords that the absence of legal remedies damages our economic system and the society in which we live. Finding funding mechanisms to achieve legal remedies for individuals and small and medium sized businesses who do not have the resources to achieve this is of social value and in the public interest. Being able to enforce legal rights is essential for a functioning market economy. According to Bain and Co’s Transatlantic Confidence Index, the rule of law remains one of the most appealing reasons to invest in the UK. At an event at Gray’s Inn that was supported by The Law Society and the Bar Council, Shadow Justice Secretary, Shabana Mahmood made her first major speech since assuming the role in which she expressed her desire for the UK be home to the fastest growing legal sector in the world. The availability of litigation funding will undoubtedly help to ensure that the UK retains its position as a leading global disputes hub that currently contributes £34 billion to the UK economy each year.
