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Litigation Funders: We’re Unsexy and We Know it!

By Maurice Power |

The following article was contributed by Maurice Power, Chief Executive Officer of Apex Litigation Finance. Apex is an established litigation funder providing bespoke funding solutions to small/mid-size commercial claims in the UK.

The widely reported panel session on litigation funding, at the recent London International Disputes Week, was wide ranging and thought provoking, with several insightful comments from Judge Sara Cockerill, former head of the Commercial Court, and the three senior lawyers who joined her on the panel. 

Mrs Justice Cockerill shared her concerns that whilst “sexy” cases, such as those which can be commoditised (e.g. competition or class action claims) or fit well into a funder’s portfolio, are most likely to be funded, other claims are less likely to be funded.  I think those familiar with the litigation funding market would broadly agree with those sentiments.  However,  contrary to that view, new entrants to the litigation funding market, including Apex Litigation Finance, are increasing the funding options available to litigating parties.  One off mid-sized claims by SMEs, individuals and insolvency practitioners are of interest to certain funders, even if the claims are deemed not to be “sexy”!

Apex was set up specifically to fund mid-sized claims.  One of Apex’s USPs is that we have no minimum funding need, so we are able to offer funding solutions for claims where, for example, only disbursements need funding. For a range of mid-sized claims  a cash injection from a funder can allow a case to proceed when it would otherwise be stymied.  The sort of claims Apex typically fund probably fall outside of the description of “sexy” used in the panel session due to their size and nature.

An SME (as well as individuals and insolvency practitioners), when faced with the reality of funding the costs of litigation, the delaying tactics of defendants, the adverse costs risk exposure and lengths of cases in the Commercial Courts, may simply be unable to afford the risk or cost of pursuing a meritorious case, or may prefer to spread and share some of the risks that come with all litigation in order to access justice. 

There is a gap between the sorts of cases typically brought by an SME and those of interest to the larger high profile funders.  Claims for breach of contract, business interruption cover insurance, professional negligence and shareholder disputes (to name some examples), as well as claims brought in insolvency processes, rarely involve claim values of more than £10m and yet they may not be pursued as many funders are simply not interested in supporting lower value cases. Litigation funding is just as essential in providing access to justice for these sorts of claims, as for the larger claims and class actions.  That funding gap is increasingly being addressed by funders such as Apex, who focus not on the scale of the investment but whether flexible funding, alongside a legal team working on full or partial CFAs, can enable these sorts of claims to be pursued in a cost-effective manner to deliver a decent commercial return to the funded client.

Whilst Apex bases their return on a multiple of funds deployed, as opposed to being paid a percentage of realisations, the impact of the PACCAR case on the wider litigation funding market is not helpful for the promotion of the concept of litigation funding and building confidence in the market.  The Litigation Funding Agreements Bill has been stood down for now, given the pending general election, but it is essential that it is revisited as soon after the election as possible, a sentiment we share with Mrs Justice Cockerill.

Mrs Justice Cockerill accepted that it is not feasible to have a single cap on the costs of funding and called for more transparency so both parties know what they are selling and what they are buying.  Many funders, including Apex, provide a funding facility with the funder’s fee based on a multiple of funds deployed, an approach which should be easily understood by the litigant seeking funding, and thus provides the transparency the litigant needs to calculate the costs.  I personally love a spreadsheet and am happy to set out the likely returns to the client in a series of scenarios, including an early settlement, a successful mediation, a deal done on the Court steps and (usually the worst for all parties) an outcome at trial, with some clearly set out assumptions.

The UK has a rapidly developing litigation funding market which Apex is proud to be an active part of.  That a senior Judge has endorsed the concept of litigation funding is great to hear.  The market would be wise to listen to the issues raised by commentators such as Lady Justice Cockerill, who have a deep understanding of the challenges facing litigating parties, and continue to evolve their approach and offerings to address the needs of as wide a range of litigating parties as possible.  That can and should include the “unsexy” cases.

About the author

Maurice Power

Maurice Power

Commercial

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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.

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.’

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.