Operating Costs inherent in the Commercial Litigation Finance Asset Class (Part 2 of 2)

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. 

EXECUTIVE SUMMARY

  • Article draws comparisons between commercial litigation finance and private equity (leverage buy-out) asset classes
  • Similarities and differences exist between private equity and litigation finance operating costs, but there are some significant jurisdictional differences to consider
  • Value creation is front-end loaded in litigation finance vs. back-end loaded in private equity
  • Litigation finance can be a difficult investment to scale while ensuring the benefits of portfolio theory

INVESTOR INSIGHTS

  • The ‘2 and 20’ model is an appropriate baseline to apply to litigation finance, but investors need to understand the potential for misalignment of interests
  • As with most asset classes, scale plays an important role in fund operating costs
  • Deployment risk and tail risk are not insignificant in this asset class
  • Investor should be aware of potential differences in the reconciliation of gross case returns to net fund returns
  • Up-front management fees may have implications for long-term manager solvency

In Part 1 of this two-part series, I compared litigation finance to private equity (i.e. leveraged buy-out) and the deployment problem endemic to litigation finance and the impact it has on the effective cost of management fees. In Part 2, I drill deeper into the operating costs inherent in running a litigation finance strategy.

Fees

The “2 and 20” model in the private equity asset class was established early on in its development, and for the most part it has not materially changed since inception (after decades).  Sure, there are some managers that charge less of a management fee and more of a performance fee, but the industry generally operates from a compensation perspective, as it has since its inception.  There have been many reasonable arguments suggesting that as a fund scales and the manager’s Assets Under Management (“AUM”) increases, the management fee as a percentage of AUM should decrease because of (i) economies of scale, and (ii) the amortization of management costs over multiple funds being managed simultaneously.  Despite these well-reasoned arguments, limited partners (LPs) have not been overly successful in moving managers off of the compensation model other than those LPs who have been able to use their scale to their advantage by making large commitments in exchange for lower management fees.  In addition, some large PE fund managers recognize the scale inherent in investing billions of dollars, and have accepted lower levels of management fees accordingly, but this dynamic is not currently relevant given the scale of most fund managers in the litigation finance market.

Why has fee compression been absent in private equity? Because the performance of private equity has justified the fee structure, although Ludovic Phalippou’s recent research entitled “An Inconvenient Fact: Private Equity Returns and the Billionaire Factory” may contribute to changing that sentiment.  Then again, private equity can always turn the page on institutional investors and ‘pivot’ to the trillions available in the 401(k) market, which has recently become more accessible. At present, I don’t see a compelling reason for the existing compensation models changing, as private equity is a much more management-intensive asset class than public equities, and does require some unique skill sets given the breadth and depth of issues inherent in managing a private business, even if only at the board level.

And while the “2 and 20” model is also prevalent in litigation finance, there have been some marked exceptions.  First, let’s take a look at the publicly-listed fund managers who also run private partnerships.

Publicly Listed Managers

In the private equity world, there are a number of managers that are currently publicly-listed.  These managers typically became publicly-listed not out of business necessity, but more so out of a necessity to monetize their shareholders’ investments in their private equity firms for the benefit of departing partners who contributed to the success of their organizations over decades, and also as part of their succession strategy.  Alternatively, they may have floated once they created a certain level of scale in the private equity business, to justify attracting investor capital in the public markets in order to scale their already sizable organizations in a variety of different asset classes (credit, distressed, real estate, etc.).  However, one thing never changed – their fee structures.  I would argue that the reason their fee structures never changed is due to the fact that such structures were at the heart of their business models since inception – 2% management fee ‘keeps the lights on’, and the 20% performance fee creates wealth (if the manager performs).  Arguably, for those that have achieved scale, both the 2% and the 20% have contributed significantly to their wealth and continue to do so.  We are even at a point in time of the lifecycle of the PE asset class that fund managers have been able to monetize their excess management fees and performance fees by selling minority interests in their PE firms to the very same institutions that pay their excess management fees & performance fees to begin with – talk about double dipping!

Conversely, the publicly-listed litigation finance managers did not always start off with a strong private partnership model, but were forced to look to the public markets for capital (see my recent article entitled “Investor Evolution in the Context of Litigation Finance” which explains why).  Instead, they ran a business off of their own balance sheets and they didn’t have to live within the confines of a 2% management fee model to finance their operations, as they could rely on funding from their balance sheets, although they ultimately had to deliver profits to their investors which forces a different type of discipline.  This had the benefit of allowing managers to expand more quickly than they could in a private partnership context, but perhaps did not have the same level of financial discipline, as the case outcome results were co-mingled with the expenses, and the investor could not necessarily bifurcate the results.

More recently, certain publicly-listed litigation finance managers have decided to forego management fees in exchange for a bigger percentage of the contingent profit of the portfolio, which appears to be unique to this asset class.  When I originally contemplated publicly-listed managers raising money through private partnerships, my thought was that they would do so to ‘smooth out earnings’ by generating consistent and recurring management fees to offset their operating expenses, and thereby contribute to producing more consistent operating profits on which their equity would be valued with less inherent volatility.  In essence, their share price would appreciate solely due to the mitigation of earnings volatility.  However, given their openness to foregoing management fees, perhaps their philosophy is that having covered off the operating costs through the public balance sheet, they should ‘leverage’ their balance sheets by maximizing their performance fee and thereby enhance their return on equity for the benefit of public investors (i.e. forget the management fees, we prefer higher performance fees).  Both approaches are equally supportable, although I would tend to favour a strategy that promotes earnings stability in an asset class than can otherwise be relatively volatile, although I also recognizine that it would take a significant amount of AUM in order to generate sufficient fees to make a meaningful difference.

As a private partnership investor, I would view the low/no management fee approach as quite attractive, because it’s almost as if the operations are being ‘subsidized’ by the public balance sheet, from which I would benefit. I am more than happy to give up some extra fees on the ‘back-end,’ as those fees are paid out of contingent profits as opposed to up-front principal, plus it selfishly helps my own cash-on-cash returns.  More recently, I have heard rumours that a private fund manager that runs multiple funds has taken the same approach – presumably the prior funds’ management fees are paying to ‘keep the lights on,’ and so they are more apt to forego current fees for a larger share of the back-end.  Of course, this might make prior fund investors wonder whether their management fees were too high if they can carry the subsequent fund’s operating expenses, in addition to covering the operations of the fund in which they invested.

The issue that foregoing management fees for additional performance fees may present, is whether this affords the publicly-listed fund managers a competitive advantage from a fundraising perspective, since most of the private fund managers don’t have the luxury of being able to forego management fees, as they rely on them to ‘pay the bills’ while they invest. One could argue that the publicly-listed managers’ compensation systems distort the marketplace, but then again, they are obtaining a higher share of profits than a private fund manager would with a ‘2 and 20’ model, and so one could say that the difference is simply a trade-off between ongoing cashflow from management fees and deferred performance payments with incremental risk.  I think given the relatively early stage of industry development, there is enough room for multiple manager compensation models, and one will not necessarily compete with the other.  After all, the only basis on which performance should be measured is net returns.  However, we are at a stage of the industry’s development where many newer managers can’t show empirical results to prove out net fund returns to investors, which may ultimately result in term modifications to established compensation norms, in order to address the inherent risk of uncertainty associated with younger managers.

Management Fee Logistics

Not all management fees are created equal, and not all management fees are as transparent as a 2% annual fee, paid quarterly.  Some fund managers have decided to charge the plaintiffs an origination fee, which may ultimately get capitalized as part of the investment in the case, but is funded by the fund investors through a larger draw, as contrasted with the draw required without an origination fee. This origination fee construct comes with the benefit of providing the investor with a return on their origination fee, but arguably this is inherent in all management fees, as there is typically a hurdle return to investors for all capital called as part of the proceeds waterfall.

The negative aspect of an origination fee is that the fee is charged and funded upfront, and so it represents an incremental ‘drag’ on Internal Rates of Return (“IRRs”).  Conversely, it may not show as an operating cost of the fund if the fee is capitalized as part of the investment, and thus may help with the J-curve effect in the early years of the fund’s performance.  However, the difference is rooted in ‘playing with numbers’. My one caution to investors on the topic of upfront origination fees is that the manager is effectively front-loading management fees that would otherwise be charged and earned over time by the fund manager.  The implication is that an investor needs to take a closer look at the long-term solvency of the fund manager when considering an investment in their fund offering, because if the manager’s returns fail to persist, they may not be able to generate sufficient fee income to run-off the remainder of the portfolio, which potentially leaves the investor in a precarious position.  Ideally, upfront fee income would be put into escrow and released to the manager over time to prevent future liquidity issues, although I have never seen this proposed (and this concept may cause “dry income” to the manager, which is taxable income for which there is no corresponding cashflow).

Other Operating Costs:

Different than some other asset classes, an investor in the litigation finance asset class has more than management fees to consider when assessing the returns inherent in the asset class, but these costs can be jurisdiction-specific.

Adverse Costs

Perhaps the most extensive cost is that of investing in jurisdictions that levy adverse costs (also known as “loser pays” rules) against plaintiffs who lose their case, which effectively makes the plaintiff responsible for the costs of the defendant’s litigation costs.  Adverse costs can be found in Australia, Canada and the UK among other jurisdictions, but they are not generally found in the US market.  These adverse costs can either be covered through an indemnity by the plaintiff, an indemnity from the litigation funder, or through the use of an After-The-Event (“ATE”) insurance policy.  It should also be noted that some judges have found the litigation funder to be ultimately responsible for adverse costs even if an indemnity for such costs was specifically excluded from the funding agreement (this is the ‘ability to bear’ principle at work, rightly or wrongly), so this should factor into your manager diligence.

Some litigation funders will put in place individual insurance policies on a case-by-case basis, and others will put in place a blanket policy at the fund level to cover all adverse costs throughout the fund.  Depending on how these costs are accounted, they could represent an upfront cost (insurance premiums are generally paid upfront) at the fund level or on a case-by-case basis, or they could be capitalized to the individual investments which would be appropriate as they are in fact a benefit to the investment.  Regardless of the manager’s approach to ATE, they represent incremental costs, and since they are funded upfront, they represent a drag on IRRs and may contribute to a more substantial J-Curve effect for the fund in its initial years (assuming they are expensed currently).  While there are many financial differences between legal jurisdictions, this is certainly one significant cost that investors who invest globally should be aware of when assessing manager performance in different jurisdictions. I would also encourage fund managers who put in place blanket policies, to ensure the costs of such policies are being incorporated into the economics of the funding agreements and passed along to the plaintiff, as there is a significant cost and benefit attached to the existence of the policy which should be recognized as a pass-through benefit.  ATE policy protection is really a plaintiff benefit, as the funder typically considers it a defensive measure, knowing that the courts have sought adverse costs protections from the funder in cases where the plaintiff does not have the financial resources to indemnify.

External Diligence Costs

The other cost which does not vary jurisdictionally that investors should be cognizant of, is the extent to which a fund manager uses external parties to diligence their cases vs. internal resources and how these costs are accounted for – expensed or capitalized as part of their investment (the more typical treatment).  It would be unreasonable to expect a fund manager to be able to perform 100% of their diligence internally, as much of litigation is nuanced and requires the input of professionals (lawyers, experts, etc.) to obtain a realistic and informed opinion of the risk associated with a particular legal or technical issue.  Some managers employ an outsourced model, while others conduct most of their diligence in-house, and the costs associated with each can influence the operating costs of the fund.

The larger litigation finance fund managers have economies of scale to their advantage, and are more likely to employ litigators and executives with specific expertise in a variety of areas, and so they are less likely to employ third parties to provide these services. With these managers, the diligence expertise is contained within their operations team, which is funded by their management fees (and may be funded by balance sheets for the publicly-listed funders). Smaller fund managers, lacking economies of scale, would be more apt to use external parties for diligence.  The question then is how are they accounting for these costs?   Are they being run through the operating expenses of the fund, are they being capitalized to the cost of the investment or are they applying a hybrid approach?

The other issue is how are “broken deal costs” accounted for, and who is responsible for picking up the external costs of undertaking diligence, only to walk away from the investment (the General Partner or the limited partners or a combination of both), perhaps as a result of the insight gained from the external party.  These costs are typically included as part of operating expenses of the fund, but not exclusively. From this perspective, litigation finance is superior to private equity as an asset class, because PE firms tend to spend hundreds of thousands to millions of dollars in external deal costs, whereas litigation finance tends to limit these to the tens of thousands of dollars (although in either case they are directly influenced by the size of the investment), as much of their diligence expertise remains in-house. This dynamic could justify a relatively higher compensation model for litigation financiers, because those costs are effectively funded through the management fees, whereas the comparable costs in private equity are funded by the limited partners through fund operating expenses, or capitalized to the cost of the investment.

Net-Net?

When I assess a litigation finance manager for potential investment, my baseline is to look at their compensation system relative to a “2 and 20” model, with the devil being in the details in terms of how those items are defined.  For small managers, of which the majority of litigation finance managers would be classified, it is difficult to make anything other than “2 and 20” work from a cashflow perspective.  For most managers, I don’t believe there is a lot of excess profit inherent in the management fees found in a “2 and 20” model, but it should be sufficient enough to hire strong people and execute on the business plan, generate solid returns if done correctly, and if management pays proper attention to portfolio construction.  Compensation should also be predicated on the fund manager deploying a high percentage of its committed capital (85-100%). Where the manager does not meet its deployment targets, perhaps there should be a ‘claw back’ of management fees.

The issue of excess compensation starts to become significant as any manager scales its operations into the hundreds of millions and billions of AUM.  This phenomenon is no different for litigation finance, but it is much more acute given the deployment issue highlighted previously. Also, relative to other asset classes, the litigation finance asset class suffers a bit from a lack of available data that would provide comfort to investors in the absence of having data to confirm that completed portfolios of litigation finance investments produce a level of return commensurate with the risk.

I have been investing in the industry for the better part of five years, and I have yet to see more than a handful of examples of fully realized net fund returns globally, which forces investors to be cautious on fees to minimize the downside risk.  There is a sufficient amount of ‘tail risk’ inherent in any portfolio, and even more in litigation finance, and so the quicker the industry can produce and disseminate data on completed portfolios, the quicker this risk can be mitigated and the industry can be viewed as a true private equity asset class with perhaps less pressure on compensation models.  Conversely, this data will also provide fund managers with additional confidence to consider different compensation models so that they can put more of their own money at risk and benefit from enhanced performance fees, which is the approach that has been taken by some of the larger publicly-listed managers who have the benefit of realization data to justify putting their fees at risk.

Investors should focus not only on management fees, but on the entire operational model, of which manager compensation may be one significant cost factor.  Certain jurisdictions and legal systems come with other costs that also need to be factored into the equation. Certain case types and strategies may also be more resource-intensive and need to be factored into the overall risk/reward characteristics of the investment (i.e. if you had to pay more people to generate a more diversified portfolio in order to reduce portfolio risk, perhaps the investor will be satisfied with a lower overall return which is reflective of the de-risked nature of the investment).  No different than litigation finance itself, investing is a form of risk-sharing.  Managers and investors who recognize the symbiotic relationship between investor and manager will soon come to appreciate the benefits of transparency and fairness that will serve as the foundation for a long-term business relationship.

Investor Insights

Any fund operating model needs to be designed taking into consideration all of the operating costs inherent in the manager’s operational model in the context of expected returns and timing thereof.  Investors care about being treated fairly, sharing risk and sharing the upside performance in order to foster long-term relationships that reflect positively on their organizations’ ability to perpetuate returns.  Professional investors rely on data to make decisions, and in the absence of data which might get them comfortable with a manager’s performance, they will default to mitigating risk. Tail risk in this asset class is not insignificant, which makes investing that much more difficult.  A performing manager that does a good job of sharing risk and reward with investors will have created a sustainable fund management business that will ultimately create equity value for its shareholders beyond the gains inherent in its performance fees.

 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.

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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.

Conclusion

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: <https://www.gov.uk/government/news/department-for-business-and-trade-statement-on-recent-supreme-court-decision-on-litigation-funding>.

[4] Press release, ‘New law to make justice more accessible for innocent people wronged by powerful companies’ (GOV.UK, 4 March 2024) Available at <https://www.gov.uk/government/news/new-law-to-make-justice-more-accessible-for-innocent-people-wronged-by-powerful-companies>.

[5] Litigation Funding Agreements (Enforceability) Bill (Government Bill originated in the House of Lords, Session 2023-24) Available at <https://bills.parliament.uk/bills/3702/publications>.

[6] Alan Bates, ‘Alan Bates: Why I wouldn’t beat the Post Office today’ (Financial Times, 12 January 2024) <https://www.ft.com/content/1b11f96d-b96d-4ced-9dee-98c40008b172>.

[7] Alex Chalk, ‘Cases like Mr Bates vs the Post Office must be funded’ (Financial Times, 3 March 2024) <https://www.ft.com/content/39eeb4a6-d5bc-4189-a098-5b55a80876ec?accessToken=zwAGEsgQoGRQkc857rSm1bxBidOgmFtVqAh27A.MEQCIBNfHrXgvuIufYajr8vp1jmn9z9H9Bwl0FC-u96h8f4LAiBumh82Jxp30mqQsGb71VSoAmYWUwo9YBO2kF5wuMP5QA&sharetype=gift&token=7a7fe231-8fea-4a0d-9755-93fc3e3689aa>.

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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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