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Commercial Special Features

Flying High: LCM Lands Portfolio Funding Deal with Aviation Company

By John Freund |

One of LCM’s key areas of focus since its IPO has been the origination and execution of corporate portfolio transactions. The recent announcement of a portfolio funding partnership with a major aviation company, in which LCM will finance 38 worldwide disputes and contractual claims arising from the operations of the company for an initial 5-year rolling period, underscores the funder’s commitment to its corporate portfolio funding strategy.

The transaction was led by Executive Vice Chairman Nick Rowles-Davies, who leads LCM’s EMEA team, comprised of some of the most experienced practitioners in the industry at corporate portfolio funding. Thanks to Rowles-Davies’ leadership and the team’s expertise, this is the second corporate portfolio transaction funded by LCM in past 12 months, and the first originating from the global cooperation agreement with a leading international law firm announced in March.

The first of LCM’s portfolio transactions was announced in October 2018, and was in the building and construction sector. LCM remains one of only a handful of funders to have completed such a transaction type. The funder also currently has eight other portfolio deals in the pipeline. Perhaps no better evidence could be proffered of litigation funding’s growing awareness and understanding amongst corporate clients – at least within certain capital-intensive industries.

As Rowles-Davies puts it: “Everyone has heard of ‘litigation finance,’ but they don’t necessarily understand what it entails. To many, it still means bringing big claims against corporates and they don’t appreciate that it is a form of financing that can support a company by monetizing its legal assets, removing the risk of litigation, increasing EBITDA and keeping costs off the balance sheet. Some sectors are certainly more aware of the benefits available through the use of litigation funding and these are typically businesses in sectors that are high-volume, low-margin; for example, aviation, construction and outsourcing.”

By financing multiple claims at once, funders like LCM reduce their risk profile, which results in a more attractive pricing structure for the client than when cases are funded on a one-off basis (one-off cases carry binary risk, therefore the cost of capital is higher). On this latest transaction, LCM has maintained the optionality to extend the number of cases it will finance, as well as the cumulative size of the financing available.

“When we are structuring corporate portfolios for our clients, we look to be as flexible as possible and try to directly address the problem that they are looking to solve by providing a bespoke solution,” Rowles-Davies adds. “This provides businesses with complete optionality as to how they fund their disputes, moving to a position of using funding out of choice, rather than necessity. This is totally different from a single case situation where often a distressed and impecunious party is being funded.”

London-based law firm Clyde & Co. helped arrange the funding partnership between LCM and the unnamed airline. This type of arrangement underscores the win-win nature of a partnership between a dedicated funder and an individual law firm. According to Rowles-Davies, this type of partnership “is not that common, but I suspect we will see more arrangements like it as funding becomes more widely used.”

Rowles-Davies is quick to point out, however, that LCM has relationships with multiple law firms, and that agreements such as its partnership with Clyde & Co. don’t guarantee exclusivity. “This is about picking your partners carefully – we want to work with people who understand how LCM operates and what we’re looking for, and it takes time to develop that understanding.”

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Commercial Regulatory Issues

Legislation to ensure the enforceability of LFAs is progressing smoothly through Parliament

By John Freund |

The following is a contributed piece by Tom Webster, Chief Commercial Officer at Sentry Funding.

So far, the Litigation Funding Agreements (Enforceability) Bill has been passing through Parliament without a hitch.

The government is bringing the legislation in response to the Supreme Court’s decision last summer in PACCAR Inc & Ors v Competition Appeal Tribunal & Ors [2023] UKSC 28, which called into question the enforceability of LFAs.

The Bill was briefly introduced into the House of Lords on 19 March, and was debated at second reading on 15 April. During the debate, while some peers discussed the need for regulation of the litigation funding industry and for careful consideration of whether the retrospective nature of the legislation was justified, no peers opposed the Bill – and many welcomed it.

More recently, during scrutiny at grand committee on 29 April, the relatively small number of peers who attended the session broadly supported the Bill, and several spoke in favour of the need for its provisions to be retrospective.

In terms of the Bill’s drafting, the government proposed some small changes at committee stage, which were waved through by peers. The most significant was to address a potential problem with the original drafting where the LFA relates to the payment of costs rather than funding the provision of advocacy or litigation services.

The problem was that, in the original wording, it could be argued that the Bill only applied to the funding of costs that relate to court proceedings, but not those relating to arbitration, or settlements. This has now been resolved by new wording to make clear that an LFA may relate to the payment of costs following court, tribunal or arbitration proceedings, or as part of a settlement. An LFA may also relate to the provision of advocacy or litigation services.

Meanwhile another government amendment was aimed at avoiding problems for litigants-in-person, by ensuring that the definition of LFAs in the Bill includes agreements to fund the expenses of LiPs, for example where they need to pay for an expert’s report.

During grand committee, peers also expressed their approval of the broad terms of reference that have now been published by the Civil Justice Council for its review of litigation funding, which will include an examination of whether the sector should be regulated; and if so, how. Peers commended the speedy timescale that the CJC has set itself, aiming to produce an interim report by the summer, and a full report by summer 2025.

As the Litigation Funding Agreements (Enforceability) Bill continues its journey through Parliament and the CJC begins work on its review, there are clearly significant changes on the way for the litigation funding sector in the UK.

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Commercial Regulatory Issues

Rowles-Davies: Retrospective Provision in Litigation Funding Bill is ‘Fundamentally Flawed’

By John Freund |

In an article shared on LinkedIn, Nick Rowles-Davies, founder and CEO of Lexolent, makes the case against the retrospective aspect of the UK government’s Litigation Funding Agreements (Enforceability) Bill. Whilst acknowledging that many within the industry disagree with his position, Rowles-Davies argues that ‘the Bill should be prospective only and that the retrospective element is fundamentally flawed.’

Rowles-Davies summarizes his extensive article into the following key points:

  1. ‘The starting point for any consideration of the Bill must be firstly to correct the various inaccurate Supporting Documents (to the Bill) such that the law as it stands, and has always stood, is properly reflected. 
  2. The Government has put forward no credible justification to support the retrospective provision in the Bill.
  3. When considered under the true set of facts, this legislation appears to be incompatible with the ECHR. 
  4. The justification for the Bill’s prospective elements and its (arguably unprecedented) retrospective aspect must be considered separately. The Supporting Documents grossly misrepresent the position. Save for pure value transfers from previously funded parties to existing funders, what the Bill properly seeks to achieve can be accomplished through prospective only legislation. 
  5. If retrospectivity survives, it is likely that the matter will come before the courts quickly thereafter in relation to the ECHR.’

Rowles-Davies argues in the article that ‘the Supporting Documents to the LFA Bill provide absolutely no evidence of legal precedent to support the retrospective aspect of the Bill.” He goes on to say that not only is this bill ‘unprecedented’, but it also fails to provide ‘credible “public interest” justification for the retrospective aspect.’ 

In the conclusion of the article, Rowles-Davies calls on both chambers of Parliament to ‘take proper time to explore the foundation upon which the Bill rests and then test its contents after it has been repaired.’ Furthermore, he argues that ‘the positioning of the Bill is disrespectful to a busy Parliament tasked with addressing far more pressing global, social, and public interest matters.’

Commercial Regulatory Issues

Bills Targeting Litigation Finance Disclosure and Foreign Funders Make Progress in Louisiana

By John Freund |

Reporting by Bloomberg Law covers the campaign to introduce new rules governing litigation funding in the state of Louisiana, with proponents of the legislation sensing an opportunity to make progress since the state elected a new governor, Jeff Landry. The two bills making their way through the Legislature are: HB336, which would create a Litigation Financing Disclosure Act, and SB355, which would enact ‘transparency and limitations on foreign third-party litigation funding’. 

In an interview with Bloomberg, Representative Emily Chenevert ,who brought HB336, explained that the turnover in elected representatives provided a fresh opportunity, saying: “The appetite was there already within the legislature and so now it’s like, let’s attempt this and let’s see with a new House and some new senators what could happen.” Dai Wai Chin Feman, managing director at funder Parabellum Capital, spoke out in opposition to Chenevert’s bill but said that SB355 was “acceptable to our industry.”

HB336 would require any party in a civil action to disclose the existence of a litigation financing agreement, whilst redacting the financial details of the agreement, and would make all financing arrangements ‘permissible subjects of discovery’. The bill also prohibits funders from controlling or making any decisions in the proceedings, stating that ‘The right to make these decisions remains solely with the plaintiff and the plaintiff's attorney in the civil proceeding.’

SB355 requires any foreign litigation funder involved in a civil action in Louisiana to disclose its details to the state’s attorney general (AG), and to provide the AG with a copy of the funding agreement. Similarly to HB336, this bill would prohibit the foreign funder from controlling the legal action in any way and also prohibits the funder from being ‘assigned rights in a civil action for which the litigation funder has provided funding’.

HB336 has been approved by the state House and was referred to the Senate Judiciary Committee, whilst SB355 has cleared the majority of procedural hurdles and now awaits a vote by the House.