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The 2021 Litigation Finance Survey Findings

December 6, 2021

The 2021 Litigation Finance Survey Findings

In September, Bloomberg Law surveyed 38 litigation finance providers, 37 lawyers, and 75 legal professionals in the UK, US, and Australia on their interest in and use of Litigation Finance. This survey provides a stirring look at developments and attitudes within the industry. As Bloomberg Law explains, the main area of concern for funders and attorneys is the question of who maintains control over the litigation. Current and pending legislation tends to guarantee that clients retain the right to decision-making even in funded cases. Meanwhile, it appears that ethical implications are of far greater importance to lawyers—with 55% listing it as a concern, compared to just 14% of funders. Matters of return waterfall provisions (based on a multiple of invested capital) and attorney returns subordinated to return of funder capital were of high importance to both funders and lawyers. Factoring duration risk in calculations of proceeds distribution is also important to lawyers and funders—though funders find it a more crucial issue. Funders also focus on the right to withhold funding. When lawyers are considering entering a funding agreement, they tend to look at the factors in this order.
  1. Financial terms
  2. Reputation of the funder
  3. Track record of the funder
  4. Type and quality of in-house legal consultancy
Commercial litigation remains the most popular area of practice for funder/attorney agreements. This is followed by international litigation, antitrust matters, international arbitration, insolvency, patent law, environmental actions, copyright/trademark cases, insurance issues, and product liability. General industry views are largely positive toward funding, though there are some specific areas of concern. At least 39% of funders and 56% of lawyers do not feel that Litigation Finance is transparent as an industry. In more positive news, more than ¾ of lawyers and 97% of funders do not agree with the oft-repeated accusation that legal funding enables frivolous filings and cases without merit clogging court dockets. Still, lawyers were largely neutral on the positive ethical reputation enjoyed by funders. Most interestingly, about half of lawyers and nearly 4/5 of funders disagree with mandatory disclosure of legal funding agreements. In the end, we see that lawyers are 69% more likely to seek out litigation funding compared to five years ago. That’s solid news for this industry that continues to grow and adapt to meet the changing needs of lawyers and clients.

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Leading Claims Firm Calls for Blanket Ban on Car Finance Claim Adverts

The law firm holding the largest book of UK motor finance claims has called for a temporary blanket ban on all advertising for such claims, arguing that duplicate representation must be resolved before consumers are marketed to further.

As reported by Legal Futures, Courmacs Legal — a North-West firm acting for 1.6 million clients across four million claims — wants the duplicate claims problem fixed first. The Financial Conduct Authority estimates that more than a million complaints have multiple representatives, with instances of consumers signing the same claim with as many as 20 different representatives. Those consumers risk incurring multiple termination fees. Courmacs stopped its own marketing a year ago.

The firm also called on the joint taskforce on motor finance claims — comprising the Solicitors Regulation Authority, the FCA, the Advertising Standards Authority and the newly renamed Information Commission — to examine the FCA's own advertising posture, noting that regulator representatives "made public statements threatening to pull its redress scheme while also still advertising to consumers that they must trust in the redress scheme."

Speaking at the Claims Futures conference, managing director Darren Smith said the taskforce "is absolutely right to have been cracking down on aggressive practices and poor handling of motor finance claims," but that "more drastic action is needed immediately if the industry can be seen as trustworthy, transparent and truly putting the consumer's interest first." He urged other firms to support the ban and proposed a roundtable involving the FCA, SRA, consumer organisations and industry.

An FCA spokesman said: "We are defending our scheme as the best way to compensate consumers. Whatever the outcome of the legal challenges, consumers' complaints would still need to be dealt with."

Commercial

UK Class Actions Now Count Three-Quarters of a Billion Members

Class actions before the UK's Competition Appeal Tribunal counted more than 750 million members by the end of last year, an increase of 80 million over the prior twelve months, with a cumulative claimed value exceeding £151 billion.

As reported by Legal Futures, research from law firm CMS found the total value rose by almost £17 billion on 2024. The composition has also shifted: opt-out claims now account for £85.6 billion against £65.6 billion for opt-in actions, reversing the previous pattern in which opt-in claims made up the majority. Membership has climbed steadily, from 560 million in 2023 to 671 million in 2024 and 752 million last year.

For the first time, big tech is the most exposed defendant sector, surpassing the stated value of the Mariana Dam litigation by approximately £8 billion. Natural resources and energy, financial products and automotive follow. CMS expects the trend to continue and to generate new claim categories, including social media addiction and claims relating to artificial intelligence.

The European Class Action Report 2026 recorded 38 UK claims issued last year, recovering from 33 in 2024. The report describes the UK as "one of the highest, if not the highest, risk jurisdictions in Europe," citing a well-developed claimant bar with close ties to US plaintiff firms, broad disclosure rules, "a sophisticated litigation funding market" and procedural mechanisms that facilitate class actions.

The UK accounted for 36% of European class actions last year, more than double its nearest rival Portugal. Italy followed at 12%, then Austria and the Netherlands. Competition claims remain the most common category, alongside a clear increase in product liability and personal injury filings.

Commercial

More Than 20 States Now Regulate Litigation Funding, Triple-I Reports

The regulatory map for third-party litigation funding has shifted decisively toward disclosure, with more than 20 states now requiring some form of transparency around outside capital in litigation. With the state-level picture largely settled, attention is turning to the federal courts.

As reported by Insurance Business, a new issues brief from the Insurance Information Institute (Triple-I) documents the pace of legislative activity. "Litigation funding has operated in the shadows for too long," said Triple-I CEO Sean Kevelighan, adding that "transparency in litigation funding is the logical next step."

North Carolina's HB 315 is the most restrictive measure enacted to date, banning litigation investment outright and carrying civil penalties of up to $50,000 per violation. Other 2026 laws — Ohio HB 105, Mississippi SB 2747, Tennessee HB 2108 and Utah HB 280 — focus on registration and disclosure requirements, restrictions on foreign funding, and limits on funder control over litigation decisions.

Federal action has been slower. The Litigation Funding Transparency Act was introduced in February but has not advanced. In March, the US Chamber Institute for Legal Reform and Lawyers for Civil Justice petitioned the Federal Civil Rules Advisory Committee for a uniform disclosure standard, drawing support from more than 200 major US companies, including dozens of insurers. The request may be taken up at the committee's October 21 meeting. The Western District of Louisiana introduced a standing order in September, though most federal judges continue to decide disclosure case by case.

Triple-I and the Casualty Actuarial Society estimate legal system abuse added between $231.6 billion and $281.2 billion to liability insurance losses over the past decade. Swiss Re puts the global litigation funding market at roughly $17 billion, projected to reach $31 billion by 2028.