Published: January 2018Contents
i What are the hot topics?
1. The Funder’s Liability for Adverse Costs and the requirement for Security for Costs; 2. Disclosure of the fact that a Claimant is funded; 3. Privilege and Confidentiality
ii Tell us about any key legal developments – recent or pending – and their international impact.
There is a developing line of cases in the London High Court on Security for Costs, starting with the Judgment of Knowles J in Wall v RBS on 7 July 2017 and ending with the Judgment of Foskett J in Bailey v Glaxosmithkline on 8 December 2017. Sandwiched in the middle is Premier Motorauctions, a Court of Appeal case destined, one hears, for the Supreme Court. Until the Supreme Court opines, there will be searching questions asked of ATE insurers on their policy wording and the Courts will become clogged up with security for costs applications by opportunistic defendant lawyers.
There is also a most worrying Supreme Court case on portfolio funding where, effectively, the funded party is a law firm, and through the firm, its clients. In the case of Impact Funding Solutions v AIG, the Supreme Court appears to have found that where a solicitor works with a funder and incurs liabilities to the funder connected to the funding arrangements, then the firm’s liability may well not be covered under professional indemnity policies that track the wording of the SRA requirements for minimum terms of PI insurance. The reason is that the Court concludes that a breach by a solicitor arising out of a funding arrangement, even where the funding is with the client, may be excluded from a PI policy. This may lead to lobbying for the SRA to change its requirements for the minimum terms of solicitors’ PI insurance.
iii What are the biggest opportunities and challenges for practitioners and clients?
For litigation and arbitration practitioners there is a major opportunity to jump on-board and make funding an integral part of their client offering. The challenges will come for those who do not embrace these opportunities
For clients, there is a great opportunity for access to justice for those who otherwise would be unable to pursue their legal rights and for those who wish to manage their risks, TPF gives them an unimpeachable opportunity to do so.