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Required reading for all commercial litigators

Deadman: myth that funders all require a case to have at least a 60% chance of success [1]

Deadman: myth that funders all require a case to have at least a 60% chance of success

Posted by Christopher Deadman, sales director at Litigation Futures sponsor Augusta Ventures [2]

With grim predictability, the Christmas period failed to deliver much in the way of festive cheer – no rocket shoes, invisibility cloak etc. The low point was undoubtedly my planned Christmas Day rendezvous with Sandra Bullock. Despite tweeting her on at least three separate occasions that I had abandoned my wife and children and was waiting for her at Heston Services on the M4 to start our new life together, she never arrived. And it cost me a 25 quid fine as I had exceed the two-hour free parking. Women eh?

My traditional New Year gloom was leavened, however, by the arrival of the imaginatively titled Third Party Litigation Funding. Written by Burford’s Nick Rowles-Davies and edited by the excellent Jeremy Cousins QC, it is comes in the sort of binding traditionally associated with Mill on the Floss or Anne of Green Gables. Or a legal textbook, which errr, this is.

Leaving aside aesthetic considerations, this is quite simply the best guide to third-party funding (TPF) that I have encountered to date. It is written in plain English and charts not only the development of the TPF industry from its genesis to the present day, but also the practical considerations associated with getting a case funded.

It deals with topics as diverse as what sort of cases are suitable for funding, different funding models, due diligence requirements and the future of the industry. It is a genuinely helpful guide not just for the experienced operator but for anyone who seeks to understand how it all fits together.

Most importantly, it lays bare what most funders are looking for in a case and why they ask lawyers for the information that they do. There are also case studies on three well-known funders and the types of model they employ in an attempt to turn a profit for their investors. For anyone with an interest in TPF, this is worth the cover price alone.

But the highlight for me appears later in the book where Nick debunks the myth that funders all require a case to have at least a 60% chance of success. Whilst an experienced counsel’s opinion is an important component in a funder’s decision making process, it is not the whole story. Funders of whatever hue will always undertake their own analysis of the merits of a claim. The mythical 60% may be yet another example of where lawyers have conflated funding with after-the-event insurance.

If your firm is involved with commercial litigation, then you really ought to purchase a copy as no matter how experienced you think you are, you will finding something of use.

Third Party Litigation Funding is published by Oxford University Press [3]