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Most City litigators would have heard from third-party funders about the virtues of this market in recent years, but how many are taking them seriously? Try as they might, this is a sector that is struggling to take root.
It’s a sector riddled with contradictions, as reporter Kate Beioley reveals in her investigation of the market.
On the one hand there’s the Association of Litigation Funders (ALF) attempting to instil a degree of self-regulation in the third-party funding industry to demonstrate integrity. On the other, funders – domestic, offshore or based in some obscure and far-flung destination – are under no official obligation to sign up to a code of practice. Bizarrely, it’s not even mandatory to have the funds in place to cover potential losses.
Sector leaders admit there are problems lurking in the shadows. Harbour Litigation founder Susan Dunn insists that some self-proclaimed funders simply don’t have the funds to put the money where their mouth is. Yet, due to client confidentiality, it’s rare for an ALF-backed funder to be transparent about how they are splashing the cash.
And when funding does come out from the shadows, it’s often because of a deal that’s backfired.
Take Clifford Chance. It took a pounding in court when its client, Excalibur, had its $1.6bn case against rival Gulf Keystone and Texas Keystone thrown out. That claim was backed by three independent funds, none of which were ALF members. In fact, the New York-based BlackRobe Capital has since shut up shop and its founder Timothy Scrantum – who also launched funder Juridica – has got out of the game altogether. Queries remain over the relationship between the magic circle firm and the second funder, shipping company NS Lemos & Co. Even ALF chairman Leslie Perrin says it’s “strange” that the brother of the partner who ran the case, Alex Payanides, is a director of Lemos.
There’s no doubt that funding has its virtues, not least for the SMEs that simply can’t afford the big bucks involved in getting cases off the ground.
But until funders step out of the shadows it will remain a market shrouded by secrecy. Selling that to a lawyer will be no mean feat.