All I want for Christmas is…

Stack of documents and papers

This is my valedictory blog for 2017. I am grateful to my loyal reader for enduring the polluted flushings of my diseased mind over the past six months. It has been fun to write and I hope that I have given the reader an insight into the world of a litigation flaneur. Before I bid you happy holidays, I would like to share with you my two wishes for Christmas. For the avoidance of doubt, these relate to litigation finance and not my personal desires, which include a solid gold house, rocket shoes and the power to become invisible at will.

December 12th, 2017

Recovery of post-LASPO ATE premiums: An underwriter’s perspective

David Brown DAS

Despite post-LASPO after-the-event insurance (ATE) policies being more relevant now than ever in terms of access to justice, their premiums receive criticism. But in the case of clinical negligence claims, LASPO explicitly allows for partial recovery of an ATE premium to protect against the risk of a claimant becoming liable for expert reports which address the issue of liability. In the context of increasingly aggressive challenges to ATE insurers’ underwriting methodology, a Court of Appeal judgment last week has reaffirmed a number of key principles that underpin the basis on which ATE insurers operate. This should help increase understanding of a product that some may find esoteric.

December 5th, 2017

Time to end commercial litigation’s “something for nothing” culture

An old woman sits knitting a rug.

Your dear old granny was full of wise sayings. ‘Look before you leap’, ‘If it looks too good to be true, it usually is’ and ‘Many a mickle makes a muckle.’ I have no clue what the last one means. All of these pithy aphorisms could apply equally to the 100% conditional fee agreement (CFA) in the post-Jackson landscape. The days of receiving something for nothing have long gone. It is time for claimants to grow up and face the fact that in the brave new world, they are going to have to pay for the services of their legal team. It is also time for lawyers to wean clients off the novocaine that is 100% CFAs for commercial claims.

November 29th, 2017

Running for shelter: Fixed costs and legal aid

Christopher McClure

At a time when fixed costs reforms are moving with the same disregard and intent as a North Korean missile (and, it would appear, with the potential to do as much damage to the world of legal costs as we know it), solicitors in small and even, perhaps, medium-sized outfits must ask themselves this question: “Is there a safe place to hide?” Where, to continue the metaphor, is the shelter of refuge? For some, the sad reality is that there simply isn’t one. Those who are unable (or unwilling, as the case may be) to fundamentally consider and reconsider the way their practice operates will no longer be able to practise as profitably – or even profitably per se.

November 21st, 2017

Apply in haste, repent at leisure

Christopher Deadman 2

According to successive government road safety campaigns and legendary boxing coach Freddie Roach, ‘Speed Kills’. In the considerably less dangerous world of litigation finance, that truism applies equally. As I have discussed previously, future success in this industry belongs to those providers who can deliver finance to applicant lawyers quickly, simply and cost-effectively. Funders who cleave to application processes of such bewildering prolixity are already dead – they just don’t know it yet. But whilst some financiers are rightly criticised for being slow and indecisive, lawyers and their clients too are not always beyond reproach.

November 13th, 2017

Incurred costs: A fixed or moveable feast?

Marc Banyard

How should you treat costs incurred between the date of an initial costs budget and the date on which an updated costs budget has been prepared? Do they fall as incurred costs for the purpose of the updated budget or remain as future costs? If such costs were retrospectively reclassified as incurred costs for the purposes of the updated budget, it would be possible to exceed the budgeted figures under the original budget with impunity, knowing that by filing an updated budget, such costs would become reclassified as incurred.

November 7th, 2017

There may be trouble ahead

Christopher Deadman 2

As a layman, I simply cannot get my head around how some of the smartest people in society can consistently get the task of estimating litigation costs so spectacularly wrong on so many separate occasions. The unforeseen costs in disclosure – eg, the budget was based on having to review three lever-arch files of material but 200 pantechnicons of documents pulled up instead – account for a tiny percentage of errors. Most of the time, the lawyer has simply adopted an overly sunny assessment of merits and has failed to consider properly how the other side is likely to respond.

November 1st, 2017

Hands up who knows what litigation financiers sell?


If your answer was ‘money’, you would be correct but sadly out of step with the prevailing thinking. If, however, you asked some other litigation financiers the same question, you would very likely receive answers like ‘project management skills’, or ‘an experienced litigation partner’. Whilst none of these answers are wrong per se, they do rather miss the point of why lawyers and clients engage with funders. Experienced and successful litigators do not want the views of litigation financiers on how to project manage their litigation – they want access to their cash pure and simple.

October 19th, 2017

Is litigation funding dead?

Christopher Deadman 2

Have you noticed that ‘litigation funding’ is gradually being replaced by the term ‘litigation finance’? If you have, then you really ought to get out more, maybe take up a hobby or start some evening classes. The reason funders (or financiers) are moving away from using the former term is that the industry is slowly waking up to the opportunities that its money can unlock. Commentators with more GCSEs than me are keen to point out that the potential of portfolio finance, i.e. funding across a basket of cases, has yet to be fully realised.

October 12th, 2017

What clients really want

Christopher Deadman 2

A few years ago, I attended a workshop for entrepreneurs in the legal sector. Apart from my long-held view that anyone who uses the word ‘workshop’ outside of a light engineering context needs to give their head a serious wobble, it got me thinking about what people really expect from their legal teams. The event itself was populated almost entirely by individuals who, were they fashioned from chocolate, would have no further need of sustenance. At the end of the event, they all roundly declared that they and only they had found the key to what their clients really want and left to create websites bearing such legends as ‘We at Smug & Vain really understand the needs of YOUR business’.

October 5th, 2017