Litigation Finance Specialization: Focus on Public Sector Entities

By John Freund |

The following article is part of an ongoing column titled ‘Investor Insights.’ 

Brought to you by Ed Truant, founder and content manager of Slingshot Capital, ‘Investor Insights’ will provide thoughtful and engaging perspectives on all aspects of investing in litigation finance. 


  • Specialization has occurred and will continue to occur in the legal finance market.
  • Public Sector Entities represent a unique plaintiff type which merits specialization
  • Damages can be significant for PSE claims, which has implications on rewards and case duration
  • Litigation finance for PSE plaintiffs is timely due to budget constraints exacerbated by the economic effects of the coronavirus.


  • PSE claims are unique enough that specialization makes sense;
  • Specialization by plaintiff type is unique and mitigates systematic risk attributable to specialization related to specific case types
  • Investors need to be aware of duration risk associated with PSE claims due to claim size
  • Investors need to ensure there is good alignment of interests and contractual arrangements between the PSE and their economic goals

While much of the specialization that has occurred to date has to do with claim type (e.g. patent claims) or risk type (collection risk in post-settlement cases vs. litigation risk in pre-settlement cases), few funders have decided to focus on plaintiff type.  One such funder, Arran Capital, has decided to do so mainly because its principal, Grant Farrar, has had hands-on experience as a result of being Corporation Counsel at the City of Evanston, Illinois, as well as serving as outside counsel to governments across the US.   Through countless high stakes litigations and transactions, he evaluated risk and outcomes that were specific to governments and their constituents.  Grant and I have agreed to co-author this article to inform readers about the Public Sector Entities space, the increasing need for litigation finance therein, and some of the attributes that need to be considered by commercial litigation finance funders and public sector entities (“PSE”) that are unique to the PSE plaintiff.


Public sector affirmative litigation of all shapes and sizes across the country is increasing.  PSEs with different demographics and economic circumstances want to ensure their right of access to the courts. This article discusses state and local governments’ (which will continue to be identified as PSE) assumption of their leading role in shaping policy and litigation priorities in the United States.  When this context is viewed through the prism of post-Covid imposed budget stress, legal financing may be uniquely positioned to provide a creative budget and policy solution for PSE.  Concerns expressed relative to PSE legal finance resemble similar objections to private sector legal finance.  These objections merit consideration, but a full treatment of these points exceeds the scope of this discussion. Lastly, impact investing mandates may generate significant new investment opportunities for PSE legal finance.

PSE Market Size and State of Play

There are approximately 90,000 units of local government.  This number is broken out in approximate numbers as follows:

  • 35,000 cities, towns, villages, townships;
  • 3,000 counties;
  • over 52,000 special districts (such as airport, harbor, water and/or sanitary districts); and
  • the remainder are school districts and other miscellaneous units.

Combined government spending for PSE is $3.7 Trillion, which is 9% of US Gross Domestic Product, and double the spend of the US federal government.  Given the size and differing compositions of PSE, it is hard to pinpoint with exactitude PSE legal spend.  According to the US Census Bureau 2017 Census of Governments (released in summer 2019), PSE legal spend in 2017 approximated over $10B for the 90,000 units of local government. Another data point is found in a dedicated survey of city legal department spend, the Governing Magazine 2016 Study of the Top 20 Largest Municipal Legal Budgets, which indicated the total annual median expense was $12M. Median annual litigation expense was $3.5M, but it is important to note that this sum excluded staff costs.  To be sure, surveys of this enormous market with differing budget data points and nomenclature cannot capture the many millions of dollars in litigation expenditures by public client law firms retained by PSE.  These litigation expenditures may either conform to traditional fee arrangements, or increasingly common alternative fee structures such as modified contingencies or hybrid hourly rate/recovery models.

Given the sizable differences In PSE entities, and the varying affirmative litigation strategies across the US, no comprehensive data set or analytics currently exists to definitively measure case duration, settlement amount or damages profiles of cases.  However, certain data points confirm the upswing in scope and return on PSE affirmative litigation.  For example, the following settlements in the last 2 years provide context:

2018 – State of Minnesota settlement of PFAS environmental cases for $850 million.  Note, litigation by local governments regarding PFAS in that state is recently underway, and not impacted by this settlement.

2019 – Cuyahoga and Summit County, Ohio settlement of opioid claims for $260 million.

2019 – Several California counties settlement of lead paint abatement litigation for $305 million.

2018 – City of Chicago settlement with Uber and Lyft for over $10 million.

2020 – United Kingdom Revenue and Customs Department obtaining a very large share of a £22.5 million recovery on an insolvency claim, such claim which was financed by a litigation funder.

Covid-19 economic dislocation and cost burdens associated with the public health response imposed severe budget impacts and revenue loss on PSE in 2020, and this impact will continue to unfold over the years to come.  Economic dislocation and related revenue decreases erode ability and capacity to pursue and sustain affirmative litigation.  Several policy organizations recently provided the following statistics to capture the amount of reduced PSE revenues, with such shortfalls constituting the biggest cash flow crunch since the Great Depression.  The National Association of Counties identified current budget shortfalls of $434 billion for states, $360 billion for municipalities, and $202 billion for counties.  The Brookings Institution estimates state and local revenues will be reduced 5% in 2020, 7.5% in 2021, and 8% in 2022.  With the prospect of divided federal government in 2021 and beyond, federal relief of this budget stress is unlikely.

Aside from the economic reality of PSEs during and subsequent to the current pandemic, there are a lot of good practical reasons for PSEs to align themselves with litigation finance managers.

Significant benefits exist for PSEs to partner with commercial litigation funders due to their perspective on the commercial aspects of a given case, which will be important for PSEs to ensure they are delivering value to their constituencies.  Funders also represent a ‘second set of eyes’ to determine the commercial prospects of a case (merits, collection, counsel insight, judiciary insight, counsel recommendations, case strategy, etc.), the probability of winning a case and the likely costs and timing associated with its pursuit.

The other perspective for PSEs to consider is using litigation finance as a financial hedge against other actions where they may be listed as the defendant.  If the PSE does not actively consider plaintiff side claims, they are missing an opportunity and exposing their constituents to downside risk associated with defense side litigation without benefiting from the upside inherent in plaintiff side litigation.  However, the PSE doesn’t have to assume this risk alone.  Instead, PSEs should consider partnering with litigation financiers to share the risk associated with plaintiff side litigation.

Implementing Legal Finance for PSE

With budget and resource scarcity juxtaposed alongside policy consensus in many PSE jurisdictions supporting affirmative litigation strategies, PSE could benefit from an infusion of investment capital to ensure public access to the courts and a level litigation playing field.  The complex cases being maintained by PSE, such as opioid claims, public nuisance claims regarding alleged environmental harms, or whistleblower actions, often require a sustained and intensive budget and legal resource commitment.  This commitment is required regardless of whether these cases utilize outside counsel, staffing a case(s) with additional government lawyers, or some combination of the two.  Given shrinking state and local budgets and the growing list of potential big-ticket claims, legal finance in the public sector could offer budget flexibility to public servants, just as it offers flexibility to private sector businesses.  Financing could permit governments to exercise a newfound ability to fund strong, effective legal counsel.  In the alternative, governments could fund operations if they have the capacity to prosecute litigation with internal legal staff.   By law, PSE budgets must be balanced every year, during a time where revenue shortfalls typically reflect 10-30% downturns.  Thus, PSE have a statutory mandate to address budget and policy allocations in a very tight time frame.  This creative new optionality could address and overcome budget and operational pressures resulting from these severe revenue shortfalls.

Legal finance could address the asymmetrical funding gap between PSE and corporate defendants.  Irrespective of the merits of their defenses, many corporate entities in high stakes PSE affirmative litigation have the means, the money, and the motivation to hire the best legal talent money can buy to wear down their opponents.  Returning to the inherent optionality of legal finance, a PSE is in a new position to get exactly the law firm it wants, not just the law firm that can take a matter on contingency.  With a financing option in place, a specialist law firm that may have a long-standing relationship with a PSE could in fact offer better value, dedication and results than a volume dependent, contingent fee practicing law firm.  However, as is the case in the private sector legal market, this does not necessarily present a downside risk for law firms.  The law firms with a public client practice, with possibly a burgeoning desire to expand their contingent fee practices, can benefit from financing which supports firm liquidity and client retention goals.  Instances of avoided or deferred litigation would be reduced if a PSE felt it had access to new financial tools to undertake litigation. While this discussion focuses only upon legal finance as applied to the affirmative litigation environment, this author believes there is a significant potential for legal finance in a defense context as well.

So how might legal finance work in the new PSE market? The competitive landscape in the litigation financing market is siloed, and concentrated in the plaintiff/consumer or private sector commercial litigation worlds.  PSE can benefit from funders that are conversant with the public sector, informed by subject matter expertise and a national network. Tapping into this niche requires relational and subject matter expertise to understand, approach, negotiate, and close deals in the public sector entity market.

While the existence of a funder’s direct contract with an entity is likely disclosable under relevant government Freedom of Information Act laws, this may not necessarily constitute a market negative outcome for the legal funder that already understands such an outcome going into prospective deals.  First, the contents of the litigation funding agreement should be exempt from full disclosure pursuant to applicable statutory exceptions exempting production of confidential, proprietary, or trade secret information.  Second, an agreement between a funder and a law firm representing a PSE (not the PSE itself) should be exempt from production as it is privileged, and also not a public record.  Third, it may actually be a net positive outcome, because if a defendant knows a public entity cannot be outspent, or that it will succumb to financial pressure exerted by a free-spending defendant, a more open and positive case settlement dialogue may occur sooner rather than later.  This author understands from first-hand experience over numerous 7 and 8-figure litigations in his career, that defendants bank on “outspending” and “burying” public sector entities with litigation costs. Quicker, fairer settlement outcomes can relate back to what the Federal Rule of Civil Procedure 1 states, that there is a goal of the “just, speedy and inexpensive resolution of every proceeding”. Fed. R. Civ. P 1.

Legal financing will interject a new component into media coverage of PSE litigation. Newly conferred budget and operational flexibility is an attractive counterpoint to the standard narrative of reciting how public entity funds are being depleted during litigation.  This type of budget flexibility promotes organizational stability for elected officials, chief financial officers, and the legal team. There could also be more dollars potentially available in a recovery that could be directed to the public good.  Depending on deal terms and the waterfall, there may be more flexibility in litigation resolution returns, meaning, more dollars returned to taxpayers, as opposed to the recoveries obtained under the traditional contingent fee model.  On any deal involving legal financing, there may be concern over the amount of returns recovered by a funder on a successful outcome.  Funders should be mindful and respectful of the intrinsic nature of operating in this space, and simply put, not seek too much.  Also, some jurisdictions, like the state of Ohio, have statutorily mandated fee schedules with a hard cap on recoveries paid to non-governmental entities.  Of course, the PSE needs to be mindful that this is an investment that requires a return that cannot be measured off of the outcome of a single investment, but rather must be viewed in the context of the funder’s portfolio (including write-offs included therein).

PSE Legal Finance and the Public Interest

Several concerns and arguments against legal finance for PSE exist, which closely resemble arguments interposed against contingent fee lawyers and law firms maintaining public sector affirmative litigation.  Many of these arguments are discussed at great length in law review articles and legal symposia.  As such, thoughtful consideration of those points far exceeds this forum.

At top of mind, however, is the contention that legal finance may deprive elected officials of their constitutional and statutory power to control public expenditure, or that legal finance processes may be non-transparent.  However, as local democratic citizen participation on budget matters makes clear, and which is repeatedly expressed in “Zoom” or in-person Council/Board meetings, those objections may run into trouble in the public forum.  The vast majority of law firm retentions must and do comply with applicable public sector procurement regulations, which typically implicate public bidding or a lengthy Request for Proposal (“RFP”) process.  In the end, this review and approval process regarding expenditure of public funds is usually publicly approved by the governing body, and requires the passage of some time.  In some states and localities, legal financing arrangements between a funder, and a PSE as a counterparty, will likely be subject to an RFP or bidding process.  However, in cases where a funder and the law firm are the counterparty, public bidding and review may not occur, as the transaction remains by and between those two entities.  RFP and bid responses typically remain confidential as proprietary business information, with the caveat that some public entities may publish a proposer’s winning bid/response as a policy custom or statutory practice. And, in some states and localities, legal finance may never be utilized as it might be disallowed under the same laws that prohibit contingent fee law firm public client work.  All told, the opportunity costs implicated by the different characteristics of the PSE marketplace can be fairly weighed against the market size and opportunity.

It is asserted that legal finance could promote the de-evolution and ceding of prosecutorial authority to funders.  Yet it is hard to imagine an ethically rigorous funder who assumes the obligations of operating in the public environment, with documents maintaining any say in legal strategy or case control.  PSE contracts with affirmative litigation firms and applicable procurement statutes typically state in black letter law that PSE maintain strategic primacy, and retain full and final settlement authority in litigation.  Legal finance is complementary to, not a driver of, PSE affirmative litigation.  Other objections stating that legal finance is a clumsy way to resolve questions that should be the sole province of legislatures or city councils, do not necessarily focus an objection upon PSE legal finance, but rather a more comprehensive objection to affirmative litigation itself.

ESG / Impact Investing Opportunities in PSE Legal Finance

A corollary consideration relevant to the possible upswing in PSE legal finance is the intersection it may have with impact investing, or Environmental, Social, or Corporate Governance (“ESG”) investing. The uncorrelated nature of legal finance coupled with the ongoing emphasis for certain institutional investors to make sustainable investments, will likely open up the market for PSE legal finance.  Investors can broaden their portfolios and their allocation strategies into this “niche of a niche”.  PSE financing advances a central thesis of all litigation, the aspiration to see the rule of law upheld.  This aspiration is a shared goal of all citizens, regardless of partisan or political persuasion.

One specific litigation area that will continue to fall into the impact investing orbit is the PFAS/PFOS water contamination cases filed across the US and the world.  This subject matter garnered new attention following the fall 2019 release of the motion picture, “Dark Waters”.  The existence and toxicity of PFAS “forever chemicals” in drinking water in the state of Minnesota triggered the settlement of state claims against 3M for $850 million in 2018.  In the months since, other states such as New Jersey, New Hampshire, North Carolina, Michigan, and Ohio, have filed suits which may potentially result in recoveries running into the billions of dollars.  Litigation funders and their investors are bound to take a close look at these cases, and those to be filed in the years to come, through the prism of ESG allocations and their potentially attractive return profiles.


PSE are in the forefront of addressing and resolving policy and litigation issues in the US.  Legal funders, prospective litigants, and law firms will likely work together to unlock this previously unrealized PSE legal market.  Investors looking for a compelling new alternative investing strategy can expect to pay attention to this niche in the years to come.

Investor Insights

The PSE sector is a vast segment of every country’s economy and litigation funders should be aware that significant opportunities may exist in the public sector given the sheer size of these organizations and the claims they may attract.  While PSE motivations may be different than commercial entities, PSEs should understand that commerce lies at the core of litigation finance and that investors need returns commensurate with the risk they assume to ensure the long-term viability of the asset class. Disclosure and RFP processes may be problematic in the context of litigation finance given the nature of the financing, and so this issue needs to be dealt with early on in the process.  PSEs should think about litigation funders not just as sources of capital, but trusted advisors that can add value above and beyond the capital they may provide.  For litigation funders, PSE claims would likely qualify as ESG investing activities, given the social benefits that are derived from these activities.

 Edward Truant is the founder of Slingshot Capital Inc., and an investor in the litigation finance industry (consumer and commercial).  Ed is currently designing a new fund focused on institutional investors who are seeking to make allocations to the commercial litigation finance asset class.

 Grant Farrar is the founder and managing director of Arran Capital Incorporated, which is currently raising capital to create the first fund specifically dedicated to investing in the PSE sector.


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PACCAR’s tidal wave effects: Understanding the Legal, Financial and Policy impacts of a highly controversial ruling

By Ana Carolina Salomao |

The following is a contributed piece by Ana Carolina Salomão, Leila Zoe-Mezoughi, Micaela Ossio Maguiña and Sarah Voulaz, of Pogust Goodhead.

This article follows our previous publication dated 10 October 2023 regarding the Supreme Court ruling in PACCAR[1] on third-party litigation funding agreements which, very simply put, decided that litigation funding agreements (“LFAs”), permitting funders to recover a percentage of damages, amounted to (“DBAs”) damages-based agreements by virtue of s.58AA of the Courts and Legal Services Act 1990 (the “1990 Act”). As such, all LFAs (including those retrospectively drafted) were consequently required to comply with the Damages-Based Agreements Regulations 2013 (the “2013 Regulations”) or be deemed, unenforceable.

In this article, we explore the three main industry-wide changes that have arisen as a direct result of the PACCAR ruling:

  1. The diverse portfolio of LFA reformulation strategies deployed by litigation finance stakeholders.
  2.  The government response, both in terms of official statements and policy changes, which have ultimately led to the draft bill of 19 March 2024.
  3.  The wave of litigations subsequent to the PACCAR ruling, giving insight into the practical market consequences of the ruling.

Ultimately, the PACCAR impact and its proposed reversal has not undermined the UK litigation finance market, in fact the contrary; it has promoted visibility and adaptation of a litigation finance market that continues to gain significant traction in the UK. As a result, despite the concern shown by most UK industry stakeholders about the negative impacts of the PACCAR ruling, this article argues that proper regulation could indeed be highly advantageous, should it incentivise responsible investment, whilst protecting proper access to justice. However, the question does remain, will we ever get there?

The LFA reformulation storm.

As expected, the first reaction to PACCAR came from the litigation finance market. As anticipated, LFAs (those with an investor return formula based on a percentage of the damages recovered) are being amended by parties to avoid their potential unenforceability.

The majority of amendments being implemented are aimed to design valuation methodologies for the amount recovered, which are not directly related to the damages recovered, but are rather a function of some other metric or waterfall, therefore involving a process of alteration of pricing. The intention is for the agreements to fall out of the scope of the definition of ‘claims management services’ provided by section 58AA of the Courts and Legal Services Act 1990 (CLSA), which stipulates two main criteria: (i) the funder is paid if the litigation succeeds, and (ii) the amount paid back to the funder is a function of the amounts recovered by the claimant in damages. As such, novel pricing structures such as charging the amount granted in third-party funding with accrued interest; a multiple of the funded amount; or even a fixed pre-agreed amount recovered in the form of a success fee, would not meet both criteria and would hence fall outside of the legal definition of claims management services. These options would avoid the risk of an LFA being bound to the same requirements of a DBA and potentially rendered unenforceable.[2]

Another option to render LFAs enforceable following PACCAR is of course to make these compliant to the definition of DBA provided in s.58AA(2) of the 1990 Act. As such, LFAs would be subjected to stringent statutory conditions as per the Damages-Based Agreements Regulations 2013 (the “2013 Regulations”). This option has however not been the most attractive for funders, firstly due to funders not necessarily conducting claims management services and, secondly, because LFAs would automatically become subject to highly stringent rules to structure the agreements and pursue recovery. For example, such LFAs would need to comply with the cap requirements outlined in the 2013 Regulations such as: 25% of damages (excluding damages for future care and loss) in personal injury cases, 35% on employment tribunal cases and 50% in all other cases.

Ultimately, it can be argued that the choice for restructuring a single LFA or a portfolio of LFAs will vary on a case-by-case basis. Those parties who find themselves at more advanced stages of proceedings will be disadvantaged due to the significant challenges they are likely to face in restructuring such LFAs. From the perspective of the legal sector, on the one hand, we can see an increase in law firms’ portfolio lending, whereby the return to funders is not directly related to damages recovered by the plaintiff. On the other hand, there are certain actors who are remaining only superficially affected by the ruling, such as all funding facilities supporting law firms which raise debt capital collateralised by contingent legal fees.

The introduction of the proposed bill by the government (which is discussed below), is a reflection of the enormous burden the Supreme Court ruling has placed on critical litigation funder stakeholders who are likely to have invested disproportionate sums to amend their LFAs and restructure their litigation portfolios. However, the bill has also given momentum to the sector and is helping to highlight the importance of diversification in litigation funding to protect the interests of low-income claimants. The medium-term net balance of the regulation might be rendered positive if redirected at perfecting and not prohibiting third-party funding agreements to protect access to justice.

The UK Government Intervention.

The UK government has raised concerns regarding the legal and financial impacts of PACCAR relatively swiftlyfollowingthe 26 July 2023 judgement. Their first response to PACCAR came from the Department of Business and Trade (DBT) at the end of August 2023. The DBT stated that, being aware of the Supreme Court decision in PACCAR, it would be “looking at all available options to bring clarity to all interested parties.[3]

In the context of opt-out collective proceedings before CAT, the government proposed in November 2023 amendments to the Digital Markets, Competition and Consumers Bill (DMCC) through the introduction of clause 126, which sought to implement changes to the Competition Act 1998 (CA) to provide that an LFA would not count as a DBA in the context of opt-out collective proceedings in the CAT. This proposal came from the understanding that after PACCAR opt-out collective proceedings would face even greater challenges considering that under c.47C(8) of the CA 1998 DBAs are unenforceable when relating to opt-out proceedings. Proposals for additional amendments to the DMCC soon followed, many of which await final reading and approval by the House of Lords. However, in December 2023 Lord Sandhurst (Guy Mansfield KC) noted that while amendments to the DMCC would mitigate PACCAR’s impact on LFAs for opt-out collective proceedings in the CAT, “the key issue is that the Supreme Court’s PACCAR ruling affects LFAs in all courts, not just in the CAT, and not just, as this clause 126 is designed to address, in so-called opt-out cases.”

As a response to this, the Ministry of Justice announced last March that the government intended to extend the approach taken for opt-out collective proceedings in the CAT to all forms of legal proceedings in England and Wales by removing LFAs from the DBAs category entirely. The statement promised to enact new legislation which would “help people pursuing claims against big businesses secure funding to take their case to court”and“allow third parties to fund legal cases on behalf of the public in order to access justice and hold corporates to account”.[4]

Following this announcement, the Litigation Funding Agreements (Enforceability) Bill was published and introduced to the House of Lords. As promised by the government’s previous statements, the primary purpose of the Bill is to prevent the unenforceability of legitimate LFAs fitting into the amended DBA definition of PACCAR. Indeed, the bill aims to restore the status quo by preventing litigation funding agreements from being caught by s.58AA of the 1990 Act.[5]

The litigation wave.

As parliamentary discussions continue, all eyes are now in the Court system and the pending decisions in litigations arising from PACCAR. Despite the government’s strong stance on this matter, the bill is still in early stages. The second reading took place in April 2024, where issues such as the retrospective nature of the Bill, the Civil Justice Council’s (CJC) forthcoming review of litigation funding, and the need to improve regulations on DBAs, were discussed. Nevertheless, despite the arguable urgency of addressing this issue for funders and the litigation funding market, there is no indication that the bill will be expedited; hence the next step for the bill passage is the Committee stage. The myriad of cases arising from PACCAR may need to stay on standstill for a while, as Courts are likely to await the outcome of the proposed bill before deciding on individual matters.

The UK has a longstanding history of tension between the judiciary power and the two other spheres of the government, the Executive and Parliament. Most of these instances have sparked public debate and have profoundly changed the conditions affecting the market and its players. For example, in the case of R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5, Gina Miller launched legal proceedings against the Johnson government to challenge the government’s authority to invoke Article 50 of the Treaty of European Union, which would start the process for the UK to leave the EU, without the Parliament’s authorisation. The High Court decided that, given the loss of individual rights that would result from this process, Parliament and not the Executive should decide whether to trigger Article 50, and the Supreme Court confirmed that Parliament’s consent was needed.

Another example is the more recent case of AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42 regarding the Rwanda deportation plan. In this case the Supreme Court ruled unanimously that the government’s policy of deporting asylum seekers to Rwanda was unlawful – in agreement with the Court of Appeal’s decision which found that the policy would pose a significant risk of refoulement.

Nevertheless, rushing the finalisation of a bill reversing PACCAR would probably be a counterproductive move. The recent developments suggest that policy makers should focus on deploying a regulatory impact assessment on any regulations aimed at improving access to finance in litigation. Regulators and legislators should ensure that, before designing new regulatory frameworks for litigation finance,  actors from the litigation finance industry are consulted, to ensure that such regulations are adequate and align with the practical realities of the market.

As the detrimental impacts of PACCAR become ever more visible, public authorities should prioritise decisions that favour instilling clarity in the market, and most importantly, ensuring proper access to justice remains upheld in order to “strike the right balance between access to justice and fairness for claimants”.  

A deeper look into the post-PACCAR’s litigations and their domino effects

Even though the English court system is yet to rule on any post-PACCAR case, it is important to understand the immediate effects of the decision by looking at a few landmark cases. We provide in this section of the article an overview of the impacts of the rulingin perhaps the three most important ongoing post-PACCAR proceedings: Therium Litigation Funding A IC v. Bugsby Property LLC (the “Therium litigation”), Alex Neill Class Representative Ltd v Sony Interactive Entertainment Europe Ltd [2023] CAT 73 (the “Sony litigation”) and the case of Alan Bates and Others v Post Office Limited [2019] EWHC 3408 (QB), which led to what has been known as the “Post Office scandal” (also referred to as the “Horizon scandal”).

Therium litigation

The Therium litigation is one of the first cases in which an English court considered questions as to whether an LFA amounted to a DBA following the Supreme Court decision in PACCAR. The case concerned the filing of a freezing injunction application by Therium Litigation Funding I AC (“Therium”) who had entered into an LFA with Bugsby Property LLC (“Bugsby”) in relation to a claim against Legal & General Group (“L&G”). The LFA stipulated between Therium and Bugsby entitled Therium to (i) return of the funding it had provided; (ii) three-times multiple of the amount funded; and (iii) 5% of any damages recovered over £37 million, and compelled Bugsby’s solicitors to hold the claim proceeds on trust until distributions had been made in accordance with a waterfall arrangement set out in a separate priorities’ agreement.

Following a settlement reached between Bugsby and L&G, Bugby’s solicitors transferred a proportion of settlement monies to Bugsby’s subsidiary, and notified Therium of the intention to transfer the remaining amount to Bugsby on the understanding that the LFA signed between Therium and Bugsby was unenforceable as it amounted to a DBA following the PACCAR ruling. Therium applied for an interim freezing injunction against Bugsby under s.44 of the Arbitration Act 1996 and argued that, as the payment scheme stipulated by the LFA contained both a multiple-on-investment and a proportion of damage clauses, and the minimum recovery amount to trigger the damage-based recovery had not been reached, no damage-based payment was foreseen.

This meant that the DBA clause within the LFA could be struck off without changing the nature of the original LFA, so that it constituted an “agreement within an agreement”. As legal precedents such as the Court of Appeal ruling in Zuberi v Lexlaw Ltd [2021] EWCA Civ 16 allowed for parts of an agreement to be severed so as to render the remainder of the agreement enforceable, the High Court granted the freezing injunction, affirming that a serious question was raised by Therium regarding whether certain parts of the agreement could be severed to keep the rest of the LFA enforceable.

By declaring that there was a serious question to be tried as to whether the non-damage clauses, such as the multiple-based payment clauses, are lawful or not, the High Court opened the possibility of enforceability of existing LFAs through severability of damage-based clauses in instances where PACCAR may also apply. The Therium litigation presents an example of another possible structuring strategy to shape LFAs to prevent them from becoming unenforceable under PACCAR. Nonetheless, as the freezing injunction will now most likely lead to an arbitration, a final Court ruling on the validity of these non-damage-based schemes appears to be unlikely.

Sony litigation

The Sony group litigation is another example of one of the first instances where issues of compliance of a revised LFA have been addressed in the aftermath of PACCAR, this time in the context of CAT proceedings. In this competition case, Alex Neill Class Representative Limited, the Proposed Class Representative (PCR), commenced collective proceedings under section 47B of the CA 1998 against Sony Interactive Entertainment Network Europe Limited and Sony Interactive Entertainment UK Limited (“Sony”). The claimant alleged that Sony abused its dominant market position in compelling publishers and developers to sell their gaming software through the PlayStation store and charging a 30% commission on these sales.

The original LFA entered between Alex Neill and the funder as part of the Sony litigation amounted to a DBA and would have therefore been unenforceable pursuant to PACCAR. On this basis, the PCR and funder negotiated an amended LFA designed to prevent PACCAR enforceability issues. The LFA in place was amended to include references for funders to obtain a multiple of their total funding obligation or a percentage of the total damages and costs recovered, only to the extent enforceable and permitted by applicable law. The LFA was also amended to include a severance clause confirming that damages-based fee provisions could be severed to render the LFA enforceable.

The CAT ultimately agreed with the position of the PCR and confirmed that the revised drafting “expressly recognise[d] that the use of a percentage to calculate the Funder’s Fee will not be employed unless it is made legally enforceable by a change in the law.” In relation to the severance clause, the CAT also expressly provided that such clause enabled the agreement to avoid falling within the statutory definition of a DBA and referred to the test for effective severance clauses.

The CAT’s approach in recognising the PACCAR ruling and yet allowing for new means to render revised LFAs enforceable in light of this decision provides a further example of a Court’s interpretation of the decision, allowing another route for funders to prevent the unenforceability of agreements. Allowing these clauses to exempt litigation funders from PACCAR will in fact allow for such clauses to become market standard for LFAs, and in this case particularly for those LFAs backing opt-out collective proceedings in the CAT.

Post Office scandal  

Although the Post Office scandal occurred in 2019, this case was only recently brought back to light following the successful tv series ‘Mr Bates vs The Post Office’ which recounts the story of the miscarriage of justice suffered by hundreds of sub-postmasters and sub-postmistresses (SPM’s) in the past two decades. In short, the Post Office scandal concerned hundreds of SPM’s being unjustly taken to court for criminal offences such as fraud and false accounting, whilst in reality the Horizon computer system used by Post Office Ltd (POL) was found to contain errors that caused  inaccuracies in the system.

Mr. Bates, leading claimant in the case, brought the case on behalf of all the SMP’s which had been unfairly treated by POL. The issuing of the claim was only made possible thanks to a funding arrangement between litigation funders and the SPM’s, used as a basis for investors to pay up front legal costs. As outlined in a publication by Mr Bates in January 2024, such financing, combined with the strength and defiance of Mr. Bates’ colleagues, allowed the case to be brought forward, a battle which in today’s circumstances the postmaster believes would have certainly been lost.[6]

The sheer scale of the Post Office scandal, and the fact that traditional pricing vehicles for legal services would have negated the claimants access to justice, placed the case near the top of the government’s agenda and called again into question the effect of PACCAR on access to justice. Justice Secertary Alex Chalk MP relied on the example of Mr Bates and the Post Office scandal to affirm that that “for many claimants, litigation funding agreements are not just an important pathway to justice – they are the only route to redress.”[7]In light of this recent statement more radical changes to legislation on litigation funding and the enforceability of LFAs appear to be on the horizon.


Assessing the long-term impact of PACCAR will ultimately need to wait until the dust in the litigation finance market settles. Nonetheless, the immediate impacts of the decision have brought four key considerations to light.

First, the relevance of the litigation funding industry in the UK is substantial and any attempt to regulate it impacts not only those who capture value from the market but also the wider society. Regulation of litigation funding could inadvertently affect wider policy questions such as equal access to justice, consumer rights, protection of the environment and human rights.

Second, there is an undeniable intention of the regulators to oversee the litigation finance market, which could reflect in stability and predictability that would be much welcomed by institutional investors and other stakeholders. However, this conclusion assumes that regulatory efforts will be preceded by robust impact assessment and enforced within clear guardrails, always prioritising stability and ensuring proper access to justice.

Third, PACCAR serves to bring awareness that attempts to regulate a market in piecemeal can lead to detrimental outcomes and high adapting costs, far offsetting any positive systemic effects brought by the new framework. Any attempts to regulate a market so complex and relevant for the social welfare should be well-thought-out with the participation of key stakeholders.

Fourth, despite the recent headwinds, the market and government reaction further prove that the litigation finance market continues its consolidation as an effective vehicle to drive value for claimants and investors. The fundamentals behind the market’s growth are still solid and the asset class is consolidating as a strategy to achieve portfolios’ uncorrelation with normal market cycles. As private credit and equity funds as well as venture capitalists, hedge funds and other institutions compete to increase their footprint in this burgeoning market, it is safe to expect a steady increase of market size and investors’ appetite for the thesis.

In conclusion, despite a first brush view of the PACCAR decision, the reactions to this decision and the subsequent developments have evidenced how litigation finance continues to be a promising investment strategy and an effective tool to drive social good and access to justice.

[1] Ana Carolina Salomao, Micaela Ossio and Sarah Voulaz, Is the Supreme Court ruling in PACCAR really clashing with the Litigation Finance industry? An overview of the PACCAR decision and its potential effects, Litigation Finance Journal, 10 October 2023.

[2] Daniel Williams, Class Action Funding: PACCAR and now Therium – what does it mean for class action litigation?, Dwf, October 25, 2023.

[3] Department for Business and Trade statement on recent Supreme Court decision on litigation funding: A statement from the department in response to the Supreme Court's Judgement in the case of Paccar Inc. and others vs. Competition Tribunal and others. Available at: <>.

[4] Press release, ‘New law to make justice more accessible for innocent people wronged by powerful companies’ (GOV.UK, 4 March 2024) Available at <>.

[5] Litigation Funding Agreements (Enforceability) Bill (Government Bill originated in the House of Lords, Session 2023-24) Available at <>.

[6] Alan Bates, ‘Alan Bates: Why I wouldn’t beat the Post Office today’ (Financial Times, 12 January 2024) <>.

[7] Alex Chalk, ‘Cases like Mr Bates vs the Post Office must be funded’ (Financial Times, 3 March 2024) <>.

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Fernando Gragera joins Aon to lead the litigation and contingency insurance practice in Iberia

By Harry Moran |

Aon strengthens its M&A and Transaction Solutions team and pioneers a local team specialising in the management of these risks

Aon plc (NYSE: AON), a leading global professional services firm, has appointed Fernando Gragera as Director of Litigation and Contingent Risks for Spain and Portugal. Fernando will join the Iberia M&A and Transaction Solutions (AMATS) team led by Lucas López Vázquez, and globally in Aon's international Litigation Risk Group. His role will be to develop the litigation insurance practice and assist Aon's clients in transferring risks arising from litigation and contingent situations.

Fernando Gragera, a Spanish lawyer and solicitor of England and Wales with more than 13 years of professional experience, comes from PLA Litigation Funding, a litigation funder specialising in the Iberian market. Previously, he worked as a lawyer in the litigation and arbitration department of Cuatrecasas and as in-house counsel at Meliá Hotels International, where he was responsible for the group's litigation and arbitration.

This appointment responds to the growing interest from investment funds, corporations and law firms in covering contingent and litigation-related risks and makes Aon the first professional services firm with a local team specialising in contingent and litigation solutions in Iberia.

Miguel Blesa, head of Aon Transaction Solutions in Iberia: "Fernando's appointment is a major milestone for the industry and embodies a commitment we have been working on for years. In this way, we reinforce our commitment to continue to support our clients and help them make the best decisions to protect and grow their business”.

About Aon

Aon plc (NYSE: AON) exists to shape decisions for the better — to protect and enrich the lives of people around the world. Through actionable analytic insight, globally integrated Risk Capital and Human Capital expertise, and locally relevant solutions, our colleagues provide clients in over 120 countries and sovereignties with the clarity and confidence to make better risk and people decisions that help protect and grow their businesses.

Follow Aon on X and LinkedIn. To learn more visit our NOA content platform. 

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Altroconsumo Secures Impressive 50 million Euro Settlement for 60,000 Participants to Dieselgate Class Action in Italy

By Harry Moran |

Altroconsumo and VW Group have reached a ground-breaking agreement, providing over 50 million euro relief to over 60,000 Italian consumers affected by the emissions fraud scandal. Celebrating this major win for Italian consumers, Euroconsumers calls on Volkswagen to now also compensate Dieselgate victims in the other Euroconsumers countries. 

The settlement reached by Altroconsumo, arising from a Euroconsumers coordinated class action which commenced in 2015 ensures that Volkswagen will allocate over 50 million euros in compensation. Eligible participants stand to receive payments of up to 1100 euros per individual owner.

This brings an end to an eight year long legal battle that Altroconsumo together with Euroconsumers has been fiercefully fighting for Italian consumers and marks a significant milestone in seeking justice for those impacted by the ‘Dieselgate’ scandal.

We extend our massive congratulations to Altroconsumo for reaching this major settlement in favor of the Italian Dieselgate victims. Finally, they will receive the justice and compensation they deserve. This milestone underscores the importance of upholding consumer rights and the accountability of big market players when these rights are ignored, something Euroconsumers and all its national organisations will continue to do together with even more intensity under the new Representative Actions Directive” – Marco Scialdone, Head Litigation and Academic Outreach Euroconsumers

Together with Altroconsumo in Italy, Euroconsumers also initiated Dieselgate class actions against the Volkswagen-group in Belgium, Spain and Portugal. While the circumstances are shared, the outcomes have been far from consistent.

Euroconsumers was the first European consumer cluster to launch collective actions against Volkswagen to secure redress and compensation for all affected by the emissions scandal in its member countries. After 8 years of relentless pursuit, we urge the VW group to finally come through for all of them and give all of them the compensation they rightfully deserve. All Dieselgate victims are equal and should be treated with equal respect.” – Els Bruggeman, Head Policy and Enforcement Euroconsumers

Consumer protection is nothing without enforcement and so Euroconsumers and its organisations will continue to lead important class actions which benefit consumers all across the single market. 

Read the full Altroconsumo press release here.

About Euroconsumers 

Gathering five national consumer organisations and giving voice to a total of more than 1,5 million people in Italy, Belgium, Spain, Portugal and Brazil, Euroconsumers is the world’s leading consumer cluster in innovative information, personalised services and the defence of consumer rights. Our European member organisations are part of the umbrella network of BEUC, the European Consumer Organisation. Together we advocate for EU policies that benefit consumers in their daily lives.

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