Extract from. Études et Dossiers No th International Liability Regimes Conference of The Geneva Association

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1 International Association for the Study of Insurance Economics Études et Dossiers Extract from Études et Dossiers No th International Liability Regimes Conference of The Geneva Association Evolving Litigation Tactics and Procedures Affecting Liability Insurers' Interests 5-6 November 2012 Paris This document is free to download from The Geneva Association website, December 2012 Working Paper Series of The Geneva Association Association Internationale pour l'etude de l'economie de l'assurance Geneva Route de Malagnou 53, CH-1208 Geneva Tel: Fax: Basel Sternengasse 17, CH-4051 Basel Tel: Fax:

2 The Geneva Association Working Paper Series Études et Dossiers appear at irregular intervals about times per year. Distribution is limited. The Études et Dossiers are the working paper series of The Geneva Association. These documents present intermediary or final results of conference proceedings, special reports and research done by The Geneva Association. Where they contain work in progress or summaries of conference presentations, the material must not be cited without the express consent of the author in question. The opinions expressed in Geneva Association newsletters and publications are the responsibility of the authors. We therefore disclaim all liability and responsibility arising from such materials by any third parties. This document is free to download from The Geneva Association website, please visit:. Layout & Distribution: Alessandra Platania The Geneva Association Association Internationale pour l'etude de l'economie de l'assurance

3 Litigation Funding: Status & Issues Christopher Hodges, John Peysner and Angus Nurse Litigation funding as: The Background an investment vehicle and as a claims generator 7-1

4 The Investment Challenge Real (discounted) interest rates* Canada United States United Kingdom Netherlands Lawyers Fee Inflation Scenario: Substantial and complex breach of contract claim in England between two companies over supply of defective equipment worth 2 million with 5 million loss of profit English Lawyers fees in Int US $ estimated at >< 1,400,000* Court Fees relatively low but rising. Expert s fees very expensive. Compare Germany: Lawyers fees predictable & lower (but inflating) but court fees higher [Source: Hodges, Vogenauer, Tulibacka The Costs and Funding of Civil Litigation: A comparative Perspective, CH Beck/Hart, 2010] 7-2

5 Recessionary Pressure Rarely companies face an existential crisis and must litigate for survival ( Bet the Ranch ). Mostly litigation is the result of a cost/benefit choice. Litigation cycle mirrors the economic cycle i.e. in a recession litigation increases Companies have less money to finance litigation themselves and their banks are less friendly Opportunity cost may be higher when competitive pressures are greater INTERNATIONAL LAWYERS FEES Hourly paid irrespective of outcome Discounted Hourly Paid Contingency Fee (% of recovery) Conditional Fee (Premium for success paid by client) Conditional Fee (Premium for success paid by loser)* Speculation (Normal fees for success/no fees for failure) Limited to small personal injury & debt collection Increasing amount of imaginative fee models** 7-3

6 INTERNATIONAL FUNDING MODELS IN COMMERCIAL CASES Client funds (Levered through bank?) Limited contingency fee funding Limited conditional fee funding Litigation Funding/Third Party Funding. Different rules in different jurisdictions (Common Law/Civil Law countries split) but common themes and strong pace of development INTERNATIONAL FUNDING MODELS IN CONSUMER CASES Legal Aid (on a declining path) Legal Expense Insurance* Conditional fees Contingency fees in individual cases (Law firm funded) Contingency fees in mass cases (Law firm or Lawyer2Lawyer pooled funding (Million Dollar Advocates Forum)** 7-4

7 Case Study: Follow on Claims Cartel activity or abuse of dominant position (Anti- Trust) EU/National government regulator (including USA) fines often following a leniency agreement Leads to potential claims B2B (e.g. airfreight; cement; vitamins) Consumer (e.g. vitamins; mobile phones) Case Study: Follow on Claims Liability not an issue because of regulatory finding Quantum & causation can be difficult Follow on complicates (e.g. vitamins) But attractive because: High aggregate value claims Likely to settle Responsive to IT process solutions But funding needed 7-5

8 Case Study: Follow on Claims Hourly rate too expensive for SMEs or consumers Contingency fees too expensive for law firms (opportunity cost & expenses) Litigation Funding/3PF ideal Litigation Funding: Basic Model Litigation funder covers: contingent liabilities of client (fundee) e.g. own lawyers fees & outgoings (experts fees, court fees etc) Contingent liability transferred from another party if the case is lost (or costs are split) i.e. lawyers fees & outgoings (experts fees, court fees etc) Winners costs paid (contributed to) by loser is the standard global model except for state court USA litigation. 7-6

9 Litigation Funding: Benefits to the Investor & Client & Lawyer Benefits to Investor: High return. Variable and commercially confidential but in the range of 40-50% of recovery Adjustments of risk in four directions are possible: (a) putting client s lawyer on risk (discounted hourly rate or contingency fee) or requiring budgets* Benefits to investor (b) Choice of forum potential to run case in different national fora or in arbitration. This may allow for recovery of fees from loser to discount against own lawyers fees. Cost recovery may make settlement point higher and more likely (but downside is that losing is more expensive) (c) In fora with high legal costs (such as England) using court management techniques such as budgets and cost capping to limit downside costs (d) Only invest in high value claims to amortise investigation cost 7-7

10 Benefits to investor Manage risk by reliance on own side lawyers expertise (c.f. hedge fund managers)* Manage risk by top slicing to an After the Event insurer** Separate product lines e.g. bonds to assist in security for costs cases; IT services to assist in disclosure/discovery excercises. No restrictive regulation Benefit to Client Unless case is sold to investor then client retains control of own case in partnership with investor* Gives client a second opinion on whether the case is worth investing in (investing real money and opportunity cost) May solve security of cost problem so 40% of something is better than 100% of nothing May allow switch of case to more favourable venue e.g. in or out of arbitration; avoidance of the Italian Torpedo Avoids cash flow problems 7-8

11 Benefit to Client May increase likelihood of settlement if 3rd party backing is known to opponent May increase settlement point: 60% of $20 million is better than 100% of $10 million Benefit to Lawyer Allows entrepreneurial lawyers to identify and finance cases at a time when their own capital or ability to borrow from banks may be reduced* Allows a second opinion/partner with Litigation Funder s in house lawyer 7-9

12 Litigation Funding: Risks to the Investor & Client & Lawyer Risks to the investor Legal Risk to the contract In common law countries potential risk of Maintenance (supporting & controlling litigation as a business) and Champerty (for a cut of the recovery). Formally, this could make the contract unenforceable and the investment unrecoverable Champerty now less of an issue but maintenance i.e. control by the investor may be problematic Risk to the investor Disclosure Risk If I know the % cut the opponent s funder is taking and the terms of the contract I can use this tactically in fighting or settling the case Arrangements between client and lawyer (including fees & funding) are privileged* Are they between client & funder? Can privilege be waived?** 7-10

13 Risk to the investor Reputational Risk Allegations of taking an excessive cut or interfering in settlement* Less of a problem in B2B cases but What if funding extends to consumers and personal injury plaintiffs (injuries of utmost severity and mass actions)? Could lead to Strike Suits/Nuisance Value cases See intervention in UK of Tort Reform lobbying from the USA Risk to the investor Conflict of interest Between the general liability business and the Litigation Funding business in an insurance group 7-11

14 Risk to the lawyer Conflict of interest between client and funder Implicit: if funder offers a long term line of credit or source of cases do they call the shots? e.g. unregulated Claims Management Companies in England (TAG and Claims Direct) Explicit: funder intervening between client and lawyer. Favouring funder against client could be a legal disciplinary offence. Risks to the Client In B2B as long as there is a transparent relationship and understanding of the product and the funder is good for the money then should be limited risk* For individual clients and mass cases more problematic c.f. concerns about attorneys controlling cases in the USA; non recourse loans in USA** 7-12

15 Should Litigation Funding be Regulated? To ensure capital adequacy and lack of interference by funder and confidentiality By Self regulation? By Statutory regulation? Or not necessary?** Waning of referral fee income for liability insurers may push them to develop litigation funding in consumer cases* 7-13

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