Financing Litigation Chapter from The little green book of dispute resolution
Financing Litigation When a business faces a dispute, one of the key factors which can influence the decision whether to pursue or defend a claim is cost. Potential litigants have to weigh up not only the commercial costs of becoming involved in litigation, but also their own legal costs and, potentially, any exposure to pay the opponent's costs if things don't go as planned. In today's market there are a number of options for financing litigation which might be available to help litigants to pursue a case that they might not otherwise be able to afford. In certain circumstances, litigation financing arrangements can therefore facilitate access to justice; they can help with businesses' cash flow; they can provide increased certainty as to potential exposure; and they can help to spread and/or minimise cost risk. In this chapter from Walker Morris' little green book of dispute resolution in England and Wales, we explain the main options available. Section contents: 1. Conditional (or Discounted) Fee Agreement 2. Damages Based Agreement 3. After The Event Insurance 4. Third Party Funding 5. Other options 6. Practical advice
PREPARED BY WALKER MORRIS FINANCING LITIGATION There are a number of different types of funding that can help a client to finance litigation. Most options involve the client sharing the risk and reward of pursuing a claim or defence with its solicitors and/or with insurers or funders. Solicitors are obliged to ensure that their clients are informed of, and understand, the various options and financial implications of litigation. Consideration of how any case will be financed is an important part of the solicitors' and client's initial assessment of the case, and should be addressed at the outset. The main options for financing litigation in today's market are. Conditional or discounted fee agreements; Damages based agreements; After the event insurance; and Third party funding. We explain each of these in more detail below. 1. Conditional (or Discounted) Fee Agreement (CFA/DFA) 1.1 What is a CFA A CFA is a contract between a client and its solicitors which sets out the arrangement for funding the dispute process. Under a CFA, how the client pays for legal services is subject to certain conditions and depends on the outcome of the case. In the event of a successful outcome a "success fee" is payable that is calculated by reference to the solicitors' base costs (that is, the total costs incurred based on the agreed hourly rate charge of the solicitor firm). If the client's case is not successful, the client will not have to pay the solicitors' base costs nor the success fee. (However, under most CFAs the client will still be responsible for the disbursements 1.). Top Tip: A full CFA is therefore often referred to as a "no win no fee" arrangement. It is important to note that, on a "win", where fees will become payable, whilst the client would seek to recover a proportion of its liability for costs from the unsuccessful opponent, it would nevertheless remain responsible to its solicitors for any shortfall, and for the payment of the success fee. 1.2 What is a DFA? A DFA is a variant of a CFA. It is a "no win, low fee" arrangement. 1 Disbursements are expenses that have to be paid during the case and to issue proceedings in the first place. They include, for example, court fees, barristers' fees and the like. Walker Morris LLP 2018. 2
PREPARED BY WALKER MORRIS Under a DFA the client will pay a discounted hourly rate fee to its solicitors, whatever the outcome of the case. However, in the event of a successful outcome a higher hourly rate will become due to the solicitors, plus the success fee. Again, on a successful outcome, whilst a proportion of the client's costs will usually be recoverable from the unsuccessful opponent, the success fee and any shortfall will remain payable by the client and disbursements are also usually be payable as with a CFA. 1.3 How is the success fee calculated? This cannot exceed 100% of the solicitors' base costs, but it otherwise varies from case to case. The success fee will be calculated by the solicitors by reference to their assessment of the risk when taking on the case. The solicitors will take into account factors (non-exhaustively) including: the overall merits of the case; the conduct and likely solvency of the opponent; the strength of evidence; and the length of time the case might take until conclusion. The success fee will often be lower on a DFA, to reflect the fact that the solicitors are being paid some of their fees whatever the outcome of the case. VAT is charged on the success fee. 1.4 Is the case suitable for a CFA/DFA? Many law firms will have a protocol in place for assessing applications for CFA/DFAs. Often such a protocol will require the case to have a minimum of 60 per cent prospect of a successful outcome, with a barrister's opinion supporting that assessment, before an application for a CFA/DFA is approved. The client will generally be responsible for the cost of obtaining the barrister's opinion. 1.5 The advantages of a CFA/DFA Entering into a CFA or DFA means an improvement in cash flow as the client's responsibility for solicitors' base costs, from the date agreed in the CFA or DFA, will be reduced or will be nil, unless and until there is a successful outcome. Bringing a case under a CFA/DFA means that the solicitors are sharing the risk of the outcome of the case - they have 'skin in the game'. Bringing a case under a CFA/DFA can enable a client to run a meritorious case regardless of financial means. In any event, a CFA/DFA should give clients more certainty about how much they may have to pay than with other types of litigation financing (for example, those which are based on a percentage of damages recovered - see below). Walker Morris LLP 2018. 3
PREPARED BY WALKER MORRIS 2. Damages Based Agreement (DBA) 2.1 What is a DBA? A DBA (sometimes referred to as a 'contingency fee agreement') is a means of financing litigation whereby the client agrees to meet its solicitors' costs on the basis that there is a successful outcome in the litigation and payment to the solicitors is linked to the amount of damages awarded or recovered on conclusion of the case. The solicitors' costs will be paid out of any damages recovered by court award or settlement (subject to the recovery of a proportion of the costs from the opponent). Again, as with CFAs/DFAs, DBAs involve the solicitors and client sharing the risk and the reward of the case. 2.2 How is the success fee calculated? Under a DBA a client may agree with its solicitors that they will receive, by way of a success fee, a share of the damages awarded from or negotiated with the opponent, up to a maximum of 50 percent of the damages claimed (in non-personal injury cases), taking into account and including the relevant VAT element and payment of barrister's fees. The solicitors do not receive any of their costs whilst the case is ongoing and if the claim is unsuccessful the solicitors will not receive any payment. Under a DBA payment by the client of the success fee (plus the relevant VAT) is dependent upon a successful outcome. However, the client will have to pay all other expenses and disbursements whilst the case is ongoing (including any ATE insurance premium (see below)) and in any event, unless it is able to recover any proportion of these from the unsuccessful opponent. 2.3 What are the advantages of a DBA? Improved cash flow - clients do not have to pay the solicitors' base costs unless and until there is a successful outcome (but they will have to pay expenses and disbursements). Improved certainty on costs - clients will be better placed to make provisions regarding legal costs as the solicitors' costs will be fixed at the outset as an agreed percentage of any damages recovered by court award or settlement. 2.4 What are the disadvantages of DBAs? Suitability - Not all claims are suitable for DBAs. It is dependent on a frank assessment of the prospects of success, the complexity of the case and the likely costs, should the case go to trial. Simply put, the potential 'upside' for the solicitors must be worth the potentially huge amount of time and money they will invest in the case, with the risk of no return on that investment if the case is lost. If there is no financial gain for the client and for the solicitors, a DBA will not work. Upfront costs - As with CFAs, most law firms will have a protocol in place for assessing applications for DBAs. Often such a protocol will require the case to be thoroughly and critically assessed and have a minimum of 60 per cent prospects of a successful outcome, with a barrister's opinion supporting that assessment. The client is likely to be responsible for the cost of that assessment, including obtaining the barrister's opinion. Walker Morris LLP 2018. 4
PREPARED BY WALKER MORRIS Early Settlement - If the case settles at an early stage then some clients may consider that the percentage that the solicitors takes appears unfair. 3. After The Event Insurance (ATE insurance) 3.1 What is ATE Insurance? ATE insurance is a type of legal expenses insurance, taken out after the event which gave rise to the dispute, which provides cover for the legal costs incurred in the pursuit or defence of litigation. Top Tip: Although the policy is taken out after a dispute has arisen, some ATE insurers will cover costs that have already been incurred. ATE insurance can cover the risk of losing the case by indemnifying the insured's potential liability for legal costs (adverse costs insurance) and/or it can cover a client's own disbursements and solicitors' fees (own costs insurance). Top Tip: It is important to note that 'own costs insurance' may not provide for costs to be paid on an ongoing basis as the case progresses. Clients should carefully consider the policy terms at the outset to check what is covered and, if necessary, to negotiate an arrangement, or even a deferment, in respect of interim billing. 3.2 Points to note It is difficult to predict the actual cost as insurers quote on a case by case basis. Generally premiums are in the region of 30-40 per cent of the amount to be insured. Where (as is common) the indemnity is for the opponent's costs, the solicitors will have to assess what these are likely to be. This assessment might be based on the costs stated in the opponent's formal cost budget if ATE insurance is applied for after that budget has been agreed or approved by the court. The solicitors will also have to consider other potential costs and disbursements that the client might want to insure. However, some ATE insurers offer premiums based on a percentage of damages or based on the amount of the solicitors' costs. Top Tip: ATE insurers offer a variety of different arrangements including, for example, staged, up front and deferred premiums. The client should discuss the options to ensure the arrangement suits their requirements. Walker Morris LLP 2018. 5
PREPARED BY WALKER MORRIS It is not essential to have a CFA or DFA in place with to obtain ATE insurance, but it may affect the willingness of an insurer to quote, and the level of the premium. ATE insurers will also expect the prospects of the case to be 60 per cent or more and they are likely to require a barrister's opinion supporting that assessment. ATE insurance enables the client to have better control over their cost exposure in the case. Top Tip: A client should be asked by their solicitors to check whether they already have insurance that might provide some cover. For example, Before the Event (BTE) insurance may provide some cover for opponent's costs and possibly some element of the clients own costs and disbursements. The following should be checked: any home, credit card or motor insurance and/or membership of a trade union; any legal expenses insurance in any aspect of a business; any legal expenses insurance which will cover costs in respect of the dispute Walker Morris LLP 2018. 6
PREPARED BY WALKER MORRIS 4. Third Party Funding 4.1 What is Third Party Funding? A third party (that is, a person/business who is not a party to the dispute and does not have any other connection to the case) can agree to share the risk, and finance all or part of the legal and other costs, of the litigation, in return for a fee. The fee is usually a portion of any damages awarded by the court or otherwise obtained in concluding the case. Top Tip: Third party funding is not a loan - it is "non recourse" funding. That means that if the case is lost, the funder cannot reclaim any of the sums they have expended. Third party funding is often expensive. The fee is likely (on average) to be three or four times the amount of funding advanced. Under a typical third party funding arrangement, the client would remain liable for the solicitors' costs and disbursements, subject to an agreement that the funder will indemnify such costs, usually as they arise during the case. A key advantage of third party funding is that sums are generally advanced during the case to help with cash flow. There are different third party funding products available on the market, and different stages of the litigation can be covered. 4.2 Points to note A funder will carry out a detailed review of a case before agreeing to fund it. This is often referred to as 'due diligence'. Top Tip: It can take some time for a funder to undertake its due diligence; acceptance rates can be low; and a minimum amount of predicted damages may be required or the value of the funded case must be substantially more than the estimated legal costs. Some of the amounts advanced by a funder will be used for costs that are recoverable from the opponent in the event of a successful outcome in the case. However, the fee element that the funder requires is not recoverable and it is assumed that this will be paid from the damages recovered if there is a successful outcome. If the case is not successful and no damages are recovered, the funder gets nothing. This is why the funder requires due diligence of both the case and the prospects of recovery of any sums due from the opponent. The funder will require the case to have prospects of success of at least 60 per cent. It will require a barrister's opinion supporting that assessment, that the client has Walker Morris LLP 2018. 7
PREPARED BY WALKER MORRIS obtained (and paid for), to be submitted with the funding application. Funders often also send applications to an external advisor to get a second opinion on merits. Top Tip: It is important to time the application carefully to ensure that there is as much information available as possible about the commercial aspects and the merits of the case, and also to take account of the time that it might take for a funder to confirm its decision. Top Tip: Any application should be put out to tender to a number of potential funders at the same time. It can be difficult to get funding at all if one funder has already rejected a case or application. Top Tip: It is a good idea to ensure that a potential funder is a member of the Association of Litigation Funders (ALF) and that they have signed up to the ALF Code. Although the code is not formally regulated by the Financial Conduct Authority (so the market remains self-regulated), the funders who sign it agree to retain a fund of at least 2 million for three years from the date the funding agreement is entered into. Funders will invariably require a client to have ATE insurance in place to protect them against adverse costs orders. They will usually include the cost of the insurance premium as part of the funding and this may attract an upfront premium. Where clients enter into a third party funding agreement, they usually enter into a "priorities agreement" with the funder, the ATE insurer and the solicitors, to set out clearly how any damages recovered will be dealt with and who will be paid first from the damages. 5. Other options Private payment (on an hourly rate) is the traditional retainer where solicitors charge clients for the time that they have spent on the case. The charges become due for payment when the work has been done (but may be billed on a regular basis or at the end of the case - depending on the retainer agreed with the solicitors) and are due regardless of the outcome of the case. Top Tip: Private payment/hourly rate charging is typical for the majority of litigation cases where, for whatever reason (such as, say, the case has a less than 60 per cent chance of success), alternative funding is not suitable or available. In those circumstances, a client can discuss with the solicitors options for transparency and updating on costs and billing, so that you can keep your litigation budget under control. In some cases it is possible for clients to negotiate a fixed fee arrangement with their solicitors. A fixed price is agreed for a case or part of the case, with the solicitors charging that price, regardless of how much time is actually spent. (This type of retainer is generally not used in work involving litigation, and it can have an adverse effect on the amount of costs that can be recovered from the opponent in a case.) Walker Morris LLP 2018. 8
PREPARED BY WALKER MORRIS Disbursement funding is a product which can meet expenses that have to be paid during the case, and to issue the proceedings in the first place. Arrangements vary, but generally funding is provided on the basis of a traditional loan plus interest. Rates can vary dramatically but the usual cost is between 15 and 40 per cent, with tiered interest being charged on amounts that are drawn down. Some funders will require the principal sum and the interest to be repaid whatever the outcome of the case, whereas others may link repayment to a successful outcome. Some clients may be entitled to receive trade union funding or public funding (legal aid). 6. Practical advice It is a regulatory requirement for solicitors to ensure that their clients are informed of, and understand, the various options for financing litigation. The options may allow a client to pursue a case that it would not otherwise be able to afford. Clients should therefore discuss potential financing options with their solicitors at the outset of any potentially contentious case. Walker Morris LLP 2018. 9
Dispute Resolution Walker Morris Group of litigation and dispute lawyers is one of the largest and most successful outside London. The Group includes specialist teams undertaking work in relation to disputes arising in the context of commercial contracts, corporate transactions, intellectual property, construction, competition, banking and finance, insolvency, real estate, regulatory issues, HR and fraud. Within the wider Group, the specialist Commercial Dispute Resolution (CDR) Team undertakes commercial and corporate disputes and litigation and handles work arising out of both operational and strategic domestic and international contracts and trading relationships which our clients have with customers, suppliers, joint venture partners and third parties. The CDR Team operates in a diverse range of business areas and has core strengths in technology, energy, engineering, manufacturing and automotive, amongst other sectors. Walker Morris' Dispute Resolution Group's core skills encompass UK and international litigation, arbitration and all forms of alternative dispute resolution. We advise global corporations and some of the UK s largest and best known companies on disputes governed by the law of England and Wales and in issues in the English courts and English arbitration. Given the popularity of English law, many of our cases arise in other jurisdictions, particularly in continental Europe, Africa and the Middle East.
Contact Rob Aberdein, Partner, Banking Litigation Andrew Northage, Partner, Regulatory +44 (0)113 283 2591 +44 (0)113 283 4543 rob.aberdein@walkermorris.co.uk andrew.northage@walkermorris.co.uk Karl Anders, Partner, Real Estate Litigation Martin McKeague, Partner, Real Estate Litigation +44 (0)113 283 2631 +44 (0)113 283 2557 karl.anders@walkermorris.co.uk martin.mckeague@walkermorris.co.uk Andrew Beck, Partner, Banking Litigation Tom Peel, Partner, Construction +44 (0)113 283 2520 +44 (0)113 283 2673 andrew.beck@walkermorris.co.uk tom.peel@walkermorris.co.uk Jeanette Burgess, Partner, Regulatory Louise Power, Partner, Banking Litigation +44 (0)113 283 2632 +44 (0)113 283 2542 jeanette.burgess@walkermorris.co.uk louise.power@walkermorris.co.uk Gwendoline Davies, Partner, CDR Andrew Rayment, Partner, Employment +44 (0)113 283 2517 +44 (0)113 283 2642 gwendoline.davies@walkermorris.co.uk andrew.rayment@walkermorris.co.uk Trudy Feaster-Gee, Partner (Barrister), Competition John Roche, Consultant, Finance Litigation +44 (0)113 283 4542 +44 (0)113 283 2637 trudy.feastergee@walkermorris.co.uk john.roche@walkermorris.co.uk Jules Harbage, Partner, Construction Richard Sandford, Partner, Banking Litigation +44 (0)113 283 4444 +44 (0)113 283 2624 jules.harbage@walkermorris.co.uk richard.sandford@walkermorris.co.uk David Hinchliffe, Partner, Finance Litigation Martin Scott, Partner, Construction +44 (0)786 657 0822 +44 (0)113 283 2524 david.hinchliffe@walkermorris.co.uk martin.scott@walkermorris.co.uk Nick Lees, Partner, CDR Malcolm Simpson, Partner, CDR +44 (0)113 283 2612 +44 (0)113 283 4064 nick.lees@walkermorris.co.uk malcolm.simpson@walkermorris.co.uk Duncan Lole, Partner, Finance Litigation David Smedley, Partner, Employment +44 (0)113 283 4410 +44 (0)113 283 2525 duncan.lole@walkermorris.co.uk david.smedley@walkermorris.co.uk
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