Litigation funding is now part of modern civil litigation.
It can make a claim possible. It can spread risk. It can support group litigation, commercial claims, insolvency claims and collective proceedings.
But funding can also become the problem.
A funding agreement may be challenged. A CFA or DBA may not fit with the wider funding structure. An ATE policy may not give the protection assumed. Security for costs may become the battleground. A funder, insurer or commercial backer may face non-party costs risk.
I advise funders, solicitors, funded parties, defendants, insurers and commercial clients on litigation funding and related costs issues.
Funding documents
A funding arrangement may involve the solicitor’s retainer, a CFA, DBA, litigation funding agreement, ATE policy, priorities agreement and provisions dealing with deductions from damages.
Those documents must work together.
If they do not, the client may challenge the deduction, the opponent may attack the funding structure, the funder may find the return less secure than expected, or the court may need to scrutinise the arrangement.
Group litigation and security
Funding is often central to group litigation and collective proceedings. The larger the claim, the more important it is that the funding structure is clear, fair and robust.
Funded litigation also raises questions about adverse costs, ATE insurance, security for costs and non-party costs risk.
What I do
I advise on funding structures before they are signed, when they are challenged, and when the costs consequences of funding become important.
I draft and settle funding-related provisions, advice notes, applications, evidence, skeleton arguments and written submissions.
The object is not to make funding more complicated. It is to make the arrangement work.
What to send
Please send the litigation funding agreement, any CFA or DBA, the solicitor’s retainer, client care letter, ATE policy, priorities or waterfall agreement, group litigation documents, pleadings, any security for costs application, relevant correspondence, and a short note explaining the issue.