At a breakfast seminar on “Big Ticket Litigation post-Jackson”, hosted by costs lawyers Kain Knight yesterday at the Crowne Plaza Hotel in London, Annabel Thomas of Enyo Law presented on litigation funding options in the new regime.

One of the many good points Annabel made was that, irrespective of the numerous grey areas surrounding the new costs regime, and particularly the DBA regulations, solicitors need to have a full understanding of the litigation funding options in order to ‘abide by conduct code’.

O(1.12) of the SRA Code of Conduct 2011 states that clients should be able to make ‘informed decisions’ about the options available to them.

Some of the questions lawyers are routinely asking about the introduction of DBAs include:

  • Can lawyers operate under a partial or hybrid DBA? Or is it “all or nothing”?
  • Is a firm liable for Counsel’s fees where Counsel isn’t acting under a DBA but the firm is?
  • Does the 50% cap on DBA success fees include VAT? If so, does this prejudice against domestic clients?
  • Law firms have immunity from adverse costs under CFAs but is that also the case for DBAs?
  • Can a lawyer enter into a DBA for a discreet part of the case?

Whilst answers to some of these questions have been provided, the Ministry of Justice (‘MOJ’) apparently declined to comment when certain points listed above were put to them.

Regardless of these unanswered questions, and now more than ever, lawyers must be aware of the available litigation or arbitration funding options for their clients.

Surveys conducted by TheJudge and others in the legal and litigation funding market show that clients are increasingly demanding creative and innovative fee structures from their lawyers, often supported by litigation funding and/or insurance, so it’s important for lawyers to be able to access up to date information about what’s out there.

Many are panicking at the prospect of having to build up a new understanding of the “post-LASPO” litigation funding and insurance marketplace but fear not – it’s our job to keep on top of the market developments and advise our clients and their lawyers on the full suite of available products, meaning you shouldn’t fall foul of your obligations to enable clinets to make ‘informed decisions’ on their litigation funding options.

If you would like to discuss the current litigation funding market with one of our brokers, or indeed if you would like to organise a bespoke, CPD accredited (and free!) training session with our knowledge development team, don’t hesitate to contact us.