January – March 2013
An unprecedented surge in the volume of applications for ATE insurance in the run up to implementation of the Jackson reforms. Conservative estimates suggest around 6-7 times the normal volume of completed ATE insurance agreements during this quarter as lawyers and clients raced to beat the deadline.
RBS Rights Issue action groups commence proceedings against RBS, with both Stewarts Law and Bird & Bird representing groups of claimants with Section 90 claims against the bank for allegedly providing investors with a misleading prospectus during the 2007 £12billion rights issue.
The Stewarts Law claimants are believed to have the benefit of the largest ATE insurance policy issued in 2013, arranged by TheJudge with a syndicate of insurers (see story). Quinn Emanuel later joined the action, representing the interests of Standard Life, Prudential and Legal & General.
Jackson takes effect on 1st. Recoverability of ATE insurance premiums and CFAs is abolished for agreements entered into after this date, subject to certain exemptions including insolvency litigation which is exempt until at least April 2015.
Damages-based agreements are permitted in the UK for the first time in contentious business, but legislators soon see a backlash as firms query the drafting of the DBA Regulations 2013 and the apparent inflexibility of DBAs to be offered on a partial basis. By the end of 2013, a number of commercial DBAs are in place but nowhere near the levels expected in view of the issues with the Regulations.
All eyes are on 2014 with possible amendment to the rules, which may remove some of the current barriers and uncertainties and make contingency fees retainer a viable mainstream proposition for UK litigators.
Excalibur Ventures v Texas Keystone & Others – Judgment is handed down in the longest-running case of 2012, with Excalibur’s claim being dismissed. Rumoured to be potentially one of the largest ever third party funded cases, with suspected losses to the participating funders believed to be in excess of £30m.
The Court of Appeal hands down a highly significant ruling, seen by many as a critical test case for the “post-Jackson” era. In one of the less well-publicised aspects of the “Plebgate Affair”, Andrew Mitchell MP brought a defamation claim against The Sun. His lawyers apparently failed to file a costs budget in time and were penalised with an order restricting their recoverable costs to the court fees.
In Mitchell v News Group Newspapers  EWCA Civ 1537, the Court of Appeal upheld this tough stance on costs budgeting and deadlines, indicating the way in which such issues will be enforced in the future.
Market Trends: A Final Word from TheJudge
“2013 has been a significant year in the litigation funding landscape. Deferred and contingent litigation insurance premiums are still the preferred option for the majority of litigants, despite incentives for lower priced upfront premiums. Insurers are responding in kind, with ample capacity available to support even the largest cases.
The litigation funding market in 2013 has become a more crowded space, with an increasing number of cases receiving offers from four or more separate funding companies, all with markedly varied pricing. This is a stark contrast to the 2009 market, for example, where one or two funders set the benchmark for market prices. Work is still to be done to increase market efficiencies, as even those who have previously secured funding for their clients will often testify that it can be a challenging process.
We are continuing to make improvements to deliver a more user-friendly process. With added competition in the space, service standards are likely to be a key battle ground between providers in 2014.”
If you have any cases for which litigation funding or insurance is required, please don’t hesitate to contact us.