An outline of recent developments in how litigation can be funded, both in the Jersey and English Courts, attracted a wide range of senior finance professionals to a seminar hosted by Bedell on 8 July 2015 entitled ‘The New Dawn in Litigation Funding’.
David Cadin, Lisa Springate and Robert Gardner, a highly experienced team of commercial litigation partners from Bedell Cristin, were joined by expert speakers from Therium Capital Management Limited, a major provider of litigation funding and DLA Piper, a leading international law firm, for a series of short presentations which looked at third party litigation funding - along with its benefits, pitfalls and its practical operation - in the context of the various principal ways that exist, or may exist, for funding litigation more generally.
Neil Purslow, co-founder and chief investment officer of Therium, explained the third party funding process, the dynamic and ever evolving state of the funding market globally and the various models being developed by funders. Mark Goodwin a litigation partner at DLA Piper, compared the funding methods employed in some cases in which he is involved, including the 11th hour use of third party funding shortly before trial in an English case involving a Jersey trustee which had exhausted its liquid assets, a conditional fee agreement case and a damages based agreement case.
Robert Gardner outlined the principal methods available for funding litigation, explaining that third party litigation funding was available in both Jersey and England, subject to safeguards, whereas conditional fee agreements and damages based agreements (both widely used in England) were unenforceable in Jersey.
Lisa Springate (the advocate who presented the application, as a result of which litigation funding was formally approved by the Royal Court for the first time), referred to the two published cases in which the Royal Court has sanctioned third party funding arrangements and looked at another recent case which demonstrated an alternative method of funding trust litigation, which involved the Royal Court ordering the trustee to distribute trust funds for use by the beneficiaries to sue the trustee itself.
David Cadin, who introduced the event, hosted a lively question and answer session following the presentations in which there was discussion amongst panellists about the influence of funders on the progress of cases they have funded, circumstances in which a trustee might consider the use of third party funding and the positive attitude of the Jersey Royal Court to third party funding in contrast with the negative pronouncements towards any arrangement which gave advocates a financial stake in a positive outcome.
Ed Drummond, Bedell litigation partner commented:
"The variety and range of questions that followed the presentations was an indication of the interest that trustees and other professionals had in learning more about funding options and how the market was changing. We were fortunate to have assembled such an experienced team of panellists who were able to talk about how to embark on third party funding from an entirely practical perspective as a result of their involvement at the sharp end of such cases".
The broad conclusion from the event was that third party litigation funding had opened up access to justice for plaintiffs who are impecunious or with illiquid assets but had also broadened the funding options available to other parties who could use funding to lay off the downsides of bringing litigation.’
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