Insurance. Adverse Costs. Claimants. We re the world s leader in litigation finance. We offer ATE insurance in the UK. We can help.

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1 Adverse Costs Insurance tocover Claimants Adverse costs and expenses are an added risk for UK claimants. Covering that risk is essential. We re the world s leader in litigation finance. We offer ATE insurance in the UK. We can help.

2 ATE insurers provide a legitimate service by providing access to justice. Hogan J in Greenclean Waste Management Ltd v Leahy

3 Burford Capital is the world s leader in litigation finance. We offer after the event (ATE) insurance on a stand-alone basis or in conjunction with litigation finance to provide UK claimants with full-service. We re publicly traded with more than a half-billion dollars devoted to litigation. Our team is made up of litigators, underwriters, investment bankers, and veterans of the world s largest firms and companies. We re experts in the economics of law. Contents Understanding ATE Insurance...2 Types of Premiums...4 Case Studies...5 Burford Bond Pricing Options for ATE Insurance from Burford...8 How We re Different...10 Working with Burford...11 Contact

4 ATE Insurance from Burford After the event (ATE) insurance from Burford Capital is taken out specifically to cover a claimant after the decision has been taken to embark on litigation. ATE insurance protects the claimant against the risk of paying adverse costs (its opponent s solicitor s fees and disbursements) and in some cases expenses (its own disbursements, including counsels fees) should its case fail. We offer cover for adverse costs and expenses up to 10 million and we re the only provider in the UK market able to write a policy of this size. We can provide AA-rated cover in England, Wales, Scotland, and the Channel Islands; for arbitration; and for English law proceedings in other jurisdictions. An ATE insurance policy offers the claimant many advantages: Removes the risk of having to pay adverse costs and expenses in the event case is unsuccessful No up-front costs Burford can either fund the premium or it can be paid on successful resolution of the underlying case Helps to level the playing field, enabling clients to obtain access to justice while protecting them against the costs associated with unsuccessful litigation Often required as part of a funding agreement if the claimant is working with an outside litigation financier, to protect the funder against its so-called Arkin liability (Arkin v Borchard Lines & Ors [2005] EWCA Civ 655) 2

5 75% of the UK s top-ranked firms and We ve worked with with claimants across the UK and around the world 3

6 Types of Premiums Do You Need Financing Solutions in Conjunction with ATE Insurance? Burford has built one of the largest and most experienced teams of underwriters in the field so we can work with you to review your needs quickly and expertly. And because we provide ATE insurance in conjunction with litigation finance, we can craft bespoke solutions to help you cover and finance your risk exposure. If the case has reasonable merits and is financially and economically viable, we can provide a premium quotation based on the amount of cover that the claimant needs. Burford Funded Premium The claimant executes a short-form funding agreement with Burford under which Burford funds the ATE premium at the outset of its involvement in the case. If and when the case is successful, Burford takes a return based on the amount provided. If the case loses, the claimant has nothing to pay. This option allows the claimant to easily access funding for other legal expenses. Deferred and Conditional Premium A deferred and conditional premium is payable out of damages at the end of the case, if and when the case is successful. If the case loses, the client has nothing to pay. The premium will reflect both the merits of the case and the adverse costs exposure as and when the case concluded. 4

7 Case Studies Do You Need Bespoke Terms to Cover Your Claim? Burford works with claimants of all sizes to develop bespoke insurance solutions. Because we re also the industry leader in litigation finance, we re able to provide solutions that truly meet clients needs. Case Study: Facilitating a Successful Outcome A wealthy individual owned two registered land titles that he arranged to sell to a developer. The individual s lawyer omitted to include a sub-clause that resulted in his client being 1 million out of pocket. The claimant issued negligence proceedings against the lawyer and took out an ATE policy to protect himself against adverse costs should his case lose. The fact that Burford had agreed to underwrite and put the ATE policy in place, and that in our objective, expert opinion the case would win, helped the claimant negotiate a favourable settlement, including all costs. Case Study: Mitigating Loss A mid-sized manufacturing company engaged a law firm to assist in protecting their option to buy a smaller company. The directors of the smaller company then sold it to a third party, allegedly in breach of contract. The claimant company sued the directors and took out an ATE policy with Burford. The proceedings were unsuccessful but the ATE policy indemnified the claimant for the defendant s legal costs which were approximately 1 million. 5

8 BURFORD BOND Do you need to overcome security for costs applications? We re often engaged by claimants facing a defendant s application for security for costs-an application made by a defendant to require the claimant to show sufficient funds to pay the defendant s costs if it has to. A security for costs application is a necessary tool to prevent defendants from being dragged into groundless cases by claimants with no prospect of paying their costs. However, such applications are also often tactical-used to delay and defeat valid cases. The Burford Bond, in conjunction with a Burford ATE policy, is designed to address this challenge. The Burford Bond provides a guarantee that the defendant s claim for costs will be met when it is successful, without any concerns over whether Burford s ATE policy will be invalidated. For firms and claimants, The Burford Bond provides complete peace of mind that they are in the best possible position to meet a security for costs challenge, thus enabling them to focus on the key issues in the case. 6

9 The Burford Bond is appropriate in all cases where a security for costs application is likely to be made, and can be put in place at the outset or at a later stage. It s particularly appropriate for firms acting for impecunious claimants or for liquidators in insolvency matters bringing claims in the name of the company. Allows claimants to overcome security for costs applications and to progress with meritorious litigation Often works as a deterrent to avoid the application and its added time and cost Reassures firm that the client s case can progress unaffected by tactical distractions Can act as a catalyst for settlement Case Study: Security for Costs A small property developer had a strong case against a larger company. A reputable firm advising the claimant were confident that the case would be settled on favourable terms but that there were a number of hurdles to overcome. The first was that the defendant had made a security for costs application; the small claimant could not be confident it could meet an order if made and was concerned this might halt its claim. On advice from the firm, the claimant put in place a Burford ATE policy and Burford Bond. In fact, the security for costs application was never madebecause the defendant realised that, shielded by the Burford ATE policy and Burford Bond, it would not succeed. 7

10 4 Pricing Options for ATE Insurance from Burford As with all our products, ATE insurance from Burford Capital is tailored to meet the needs of claimants and their lawyers it s inherently bespoke. However, we typically approach ATE insurance pricing in four ways. When we talk with you about your needs, we ll likely offer more than one way of addressing your needs. 1Funded Premium This is a non-conditional ATE premium paid on inception by Burford to the insurer. The claimant executes a short-form funding agreement with Burford under which Burford funds the ATE premium. The premium is based upon a fixed level of cover, which is determined by reference to the costs budget. In the event that the case is successful, Burford then takes a return based on the funding provided from the damages. If the case is not successful, there is nothing to repay as the funding is non-recourse. Burford will also offer a funded premium on a staged basis; whereby a claimant pays for a certain amount of cover on day one and a certain amount the following year (and annually thereafter) if the claim has not concluded. The funded premium option allows the client to easily access funding for disbursements and other costs under the same short-form funding agreement. 2 Exposure Based Premium The exposure-based premium is payable at the end of the case by the claimant out of damages, if and when the case wins. If the case loses the claimant has nothing to pay. The premium rating will reflect a risk and merits rating and the adverse costs and expenses exposure (the amount of cover provided) at the conclusion of the claim. Our premium rating methodology has been tested in the Court of Appeal, so law firms can feel confident it is actuarially reasonable and appropriate for their clients. The premium is based on actual adverse costs exposure at conclusion of the matter and is not set at a fixed level. In insolvency and defamation matters, where recoverability of ATE premiums from opponents (and not from damages) is still possible, this model is particularly useful given it provides court-endorsed, proportionately-priced protection against the range of circumstances from early settlements to decisions at trial. 8

11 3 4 Staged Premium Accrue As You Go Premium This is a deferred and conditional premium that increases based on the stage of litigation that has been reached. A fixed amount of cover will be provided and a premium will be due, if and when the case successfully concludes. The calculation of a staged premium requires careful budgeting and analysis, and is therefore case-specific. This does however give the client absolute certainty as to the cost of the insurance at any given moment, whilst not being as directly proportionate to the risk as the exposure based model. This is a deferred and conditional premium, based on a fixed limit of indemnity. The premium grows in equal increments each and every month. The total premium due is divided into equal instalments for the anticipated duration of case and accrues at a fixed monthly level until the case wins; at which time the accrued premium becomes payable. We offer other solutions depending on clients needs. Contact us to learn more about Excess of loss where the claimant is comfortable taking a certain amount of risk itself, but requires protection from a major loss Top-ups where cover under existing arrangements (with Burford or another provider) is exhausted Interim adverse costs cover limited cover to deal with interlocutory costs awards Cross-undertakings and fortification cover to meet such an application Burford Bond designed to deal with Security for Costs applications 9

12 Burford is the global leader in litigation and arbitration. Here s what makes us different: Significant Capital Immediately Available Burford has raised over $500 million and is traded on the London Stock Exchange. Having our own permanent capital means we can make substantial investments and we can move quickly. It also means we are not subject to the limitations and restrictions of private investment funds. The Most Experienced Team in the Field Leaders in the economics of litigation finance and creative deal structuring, Burford is staffed by lawyers and insurance professionals with expertise in underwriting a wide range of complex matters. Cofounded by a former general counsel of Time Warner and a Georgetown University law professor, we re veterans of Cravath, Latham, Freshfields, Olswang, Credit Suisse, Merrill Lynch, and other top-performing firms. Leading Innovation in Litigation Finance Agility In addition to offering ATE insurance, Burford is a leader in litigation finance. We go beyond what people think litigation finance can do far beyond the many outside funders merely able to pay the legal expenses of a given claim. We innovate solutions to address unique needs, and we work with them at any stage in the litigation cycle. Because we ve built the finest in-house team in the field, we re able to assess very quickly whether and how to finance a deal. And because we invest our own money, our clients don t wait for us to raise funds to finance their needs. 10

13 What To Expect When You Contact Burford After some quick initial details, we will send you an application specific to ATE insurance from Burford. If you re also interested in speaking with us about litigation finance, we ll also send an NDA. To preserve privilege, you should only provide confidential material pursuant to such an NDA, and you should not shop matters widely even under NDA. To ensure compliance, you should only interact with members of The Association of Litigation Funders. We ll then work with you to understand your needs and the challenge you re trying to solve. We can move as quickly as you need us to. 11

14 Please call or to learn more about Burford and how we can help. +44 (0) London New York Los Angeles Scarborough San Diego Washington