Over recent decades, regimes around the world have begun to legalise third-party funding of litigation. Taking England & Wales as an example, the expenses of litigation were not transferrable less than a decade ago. Until that point, the historic principles of Champerty and Maintenance barred a third-party from funding legal cases. But in 2013, Lord Neuberger, the president of the UK Supreme Court, adapted the rules in the name of enabling access to justice, and the litigation funding industry was born. Today, such funding is increasingly available around the world, and in demand from claimants, their lawyers, and investors alike.
Initially, litigation funding was largely reserved for those who simply could not pay legal costs. The typical situation was a ‘David & Goliath’ type case, where a private individual of limited means required support to seek redress from a large organisation who had wronged them. Following the success of such cases, acceptance in other realms grew. Over time, such funding has widened across all areas of the legal spectrum, including to large commercial cases, multinational investment treaties and significant group actions to name but a few. Typically, however, funding operates along similar lines, regardless of the type of case at hand.
This article will outline some of the common features of funding across major markets. Whilst there is some variance based on legal regime, acceptance of funding as a concept and the sophistication of the players present, there are some typical features which exist in most markets. Following an overview of these common traits, we will then outline some of the key elements of the funders process, to assist lawyers in guiding their clients towards the most appropriate funding solution.
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Litigation funders only make returns with successful resolution of cases, whether a win in court or an out of court settlement. Their choice of investments is therefore incredibility important to the success of their business model. Well managed funders invest time and resources in building a process to carefully source, vet and manage claims.