A question which is often asked when solicitors call to enquire about making a new application is whether an Advice from Counsel is necessary in order to obtain ATE insurance and/or litigation funding terms.
The short answer is “no” – there is not a pre-requisite to obtain a barrister’s Opinion per se. Clearly, however, a supportive Opinion from a well-respected Counsel is likely to be given some weight by the ATE insurers and risk assessors who are considering the papers.
WHEN COUNSEL’S OPINION MAY BE NECESSARY:
Nevertheless, there are a number of cases where after the event insurers or third party funders will most likely want to see an Opinion before formulating their decision. While there is no hard and fast rule, if the Defence has already been served (and especially if the case is fast approaching trial), or if the case is a particularly complex one (i.e. the claim involves a novel, untested area of the law), there is a reasonable chance that ATE insurers and/or litigation funders will request sight of an Advice from Counsel, if one has not already been provided.
Equally, there are some areas of law, such as intellectual property, competition law, construction and tax litigation, in which insurers are likely to be less well-versed and consequently a clear and convincing Counsel’s Opinion will probably be required.
MITIGATING THE COST:
In deciding whether to obtain an Advice from Counsel, clearly the price of doing so must be taken into account. However, it is worth remembering that, should they choose to offer terms on the risk, ATE insurers and litigation funders can potentially provide retrospective cover and/or funding for any Advice already obtained.
Therefore, while an Opinion is certainly preferable, it’s not always required. Where cost is a concern we recommend you speak to one of our brokers as there may be ways of mitigating the expense e.g. whether by retrospective funding or ATE insurance, or alternatively by narrowing the instructions to Counsel to only deal with points required by assessors. Conferences with Counsel can also be a more cost effective means to satisfying ATE insurers’ or litigation funders’ due diligence.