REUTERS | Mike Hutchings
REUTERS | Mike Hutchings

Over time, due to the rapid growth in the availability of litigation finance, more and more cases involve a minimum of three stakeholders: a litigant, a funder and an after the event (ATE) insurer. A pre-condition of any litigation finance arrangement is that ATE insurance is purchased by the claimant, in the claimant’s own name; that by necessity creates a three-party relationship. Of course, where the legal representative is acting on a conditional fee agreement (CFA) or damages-based agreement (DBA), that makes at least four stakeholders (or five if counsel is acting on any form of contingency agreement).

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REUTERS | Clodagh Kilcoyne

Following the introduction of costs budgeting under section II of Part 3 of the Civil Procedure Rules on 1 April 2013, much has been said, written and done about how it has affected Part 7 multi-track litigation in claims worth at least £50,000 where it is compulsory.

To some, costs budgeting has added an additional layer to the already formidable expense of civil litigation by the front-loading of very significant costs in actions which never reach trial.

To others, costs budgeting has delivered a welcome degree of control over what each party can spend and expect to recover in costs if successful, and what the outlay will be if unsuccessful.

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REUTERS | Michaela Rehle

In Jamieson v Wurttemburgische Versicherung AG and another, Master Davison gave an interesting judgment refusing to lift a stay in these proceedings, which had been issued by the claimant against the respective defendants: the insurer of a taxi; and his employer. These proceedings had been stayed by consent pending the outcome of a claim issued in Germany by the insurer seeking a declaration that it was not liable for the claimant’s accident. Instead, Master Davison made a request under Article 29(2) of the Recast Brussels Regulation (1215/2012) asking the German court to confirm the date of filing at court of the insurer’s claim.

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REUTERS | Mike Hutchings

The recent High Court judgment in Various Claimants v G4S plc provides important guidance on the ability of claimants to be added to a claim before service, and on amendments to the descriptions of claimants after service where the relevant limitation period arguably has expired.

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REUTERS |

There are differences between substantive litigation and costs litigation which are critical to explaining why parties might be resistant to alternative dispute resolution (ADR) in costs matters. The primary difference is that in the costs litigation the liability for substantive costs has already been determined and the paying party is already feeling the pain of footing the bill. Any additional step in the detailed assessment proceedings is perceived (not without cause) as merely adding to the costs.

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REUTERS | Kim Hong-Ji

Contingency fees provoke very different responses from lawyers, ranging from the view that they are the work of the devil, to them being the ultimate tool providing access to justice.

As usual, the truth lies somewhere in between, but the direction of travel of recent senior court decisions is definitely to endorse contingency fees, which are the ultimate form of proportionality.

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REUTERS | GCS

In my prior blogs I examined “implied probability of loss” as a way of analysing the risk and price of transactions in the litigation funding market.

Let’s take for example (and with all the usual caveats about being reductive) a funder that determines that a case has, say, a 2/3 chance of winning and generating for both the claimant and the funder lots of money, and a 1/3 chance of losing with an attendant destruction of the funder’s entire investment.  When pricing this case that funder must charge, on a win, $1.5 for every $1 invested just to break even. This is because the funder has a 1 in 3 chance of losing 100% and a 2/3 chance of winning 150%, which yields, on average, 100% (that is, a mere return of the funder’s investment).

This analysis requires a few assumptions, including that:

  • The funder has a diversified book of investments of this sort and all of those are single-case investments (portfolios and other funkier deals complicate the picture).
  • The funder’s operating costs are zero.

Now I want to quantify the impact of operating costs by looking at two hypothetical funders with different cost structures.

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REUTERS | David Mdzinarishvili

In Global Energy Horizons Corporation v Gray [2021] EWCA Civ 123, the Court of Appeal demonstrated the circumstances in which an appellate court will overturn costs decisions made by judges below. Disputes over who is substantially the winner at the end of litigation are not uncommon and judges regularly exercise their discretion, under CPR 44, to arrive at costs orders which reflect the true outcome of the claim.

This case illustrates the important difference between that discretion and the incorrect application of legal principle, and shows that, in the case of the latter, the appellate court will be quick to intervene.

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REUTERS | GCS

“Data is like garbage; you’d better know what you are going to do with it before you collect it.”

This quote is, alas, not a creative warning from a FTSE 100 Data Protection Officer about the risk of collecting data under the General Data Protection Regulation (GDPR). No, the quote is from Mark Twain, who died more than 100 years before GDPR. Even so, it bears an uncanny resemblance to today’s modern data landscape.

Except data is no longer garbage. Consumer data is now corporate gold. And you’d better know what’s going to happen to you if that gold is compromised, lost or negligently handed over to criminal parties.

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