{audio:0:00:01} Ruth, can you provide a short introduction to your background, please?

{audio:0:00:06} My name is Ruth Stackpool-Moore and I am an investment manager with Omni Bridgeway, based in Singapore. I joined the Omni Bridgeway team just over a year ago, about this time in 2019 and that was just around the time of the merger of the IMF and the Omni Bridgeway brands. I’ve worked in third-party funding for about five years, always in Asia. Initially, I set up what was probably one of the first dedicated Asian offices, for a global funder, in Hong Kong, in 2015. That meant I have probably got some of the longest on-the-ground experience of anyone funding in this part of the world. It also means I have been quite involved in some of the developments of how the industry is accepted in different jurisdictions within the region.

{audio:0:00:56} Since that time, I’ve moved down to Singapore, which is where I joined Omni Bridgeway. In terms of my professional experience, I’m Australian and that’s where I got my initial qualification, but I’m also qualified in the UK. I’ve lived and worked in five other countries. I’ve also practiced in France, for example. I have had some experience of civil law, as well as common law jurisdictions. During that time, I was mainly working in private practice, with top tier international firms. For example, I stared my career with Coudert Brothers, which is a firm that doesn’t exist anymore, but was a very well-regarded international firm, at that point. I worked with them in Sydney and Paris. I also worked with Orrick and Dechert, also in Paris, and then moved to Debevoise in London. That was all before moving out here, to Asia, about eight years ago, where I also had the opportunity to gain experience of how institutions manage arbitral proceedings. I ran the arbitration team at the Hong Kong International Arbitration Centre, for a number of years, so gained particular experience into that side of how arbitrations are managed and run.

How would you describe a core litigation case?

{audio:0:03:05} Effectively, a litigation case involves disputing parties. They might be single parties, in opposition, or they might be groups of parties. That might be in the litigation context itself, which is a public forum, so in courts. In might be in a private dispute resolution context, which is arbitration. It might be in an insolvency context, where you have got insolvency practitioners, creditors and others involved. There is really a whole range of scenarios in which you would have litigation or arbitration cases arise.

{audio:0:03:44} In terms of what value we add and how we become involved – in the past, typically, funding was developed as an access to justice type tool, so for parties to a dispute who couldn’t afford to bring their proceedings. Often, that might have been in the insolvency context or simply people who, through various circumstances, had been forced into a position where they didn’t have the money to bring their claim. They would look for a funder to allow them to pursue their claim and, hopefully, ultimately recover.

{audio:0:04:19} What has developed in the industry since then and which I think is the major value proposition that we have now, is that third-party funding represents a cash management and risk allocation tool for companies, whether they have the money to pursue their proceedings or not. That is not necessarily the central question. Really, what they are thinking about is their business strategy. Do they want to spend their balance sheet on these proceedings and what will they have to spend to pursue their claims? Normally, that would be juxtaposed with, do they want to spend that on their business?

{audio:0:04:53} Now, what they can do is, they can use our finance for the legal claims and use their own money for their business. In some circumstances, they can even get working capital from us, to invest in their core business operations while, at the same time, being able to pursue their case.

{audio:0:05:09} How do you originate cases?

{audio:0:05:12} It’s a very relationship-driven industry. Typically, cases come to us in three ways. They might come from clients directly. For example, if a company has been involved in a dispute before, where funding has been used, they might know to come to us directly. If they are more sophisticated and funding is something that they are aware of, they will simply pick up the phone, tell us they have a dispute and we’ll take it from there. Other circumstances might be that they have gone to their lawyers and they are discussing their prospects and how they might wish to take forward their case and the lawyer might suggest that they consider funding, either because the case is one where they might not wish to invest the money in the case, so it would not go forward without a funder, or it might be just as an alternative or different way to manage the financial arrangements in that case. The lawyers might then suggest that they approach us. Finally, other professional advisors, other types of experts, might be looking at cases and, also, might suggest that the case is one that is suitable for funding.

{audio:0:06:20} In all of those circumstances, we would then commence our due diligence process and run through that, in looking at the particular case.

{audio:0:06:29} How are the cases different, directly from a corporate and a law firm?

{audio:0:06:38} Generally, there may or may not be any difference. Whether it comes from a client or through the law firm, largely depends on the level of education, of either party, about funding. It is not necessarily the case that a different type of case would come through each route.

{audio:0:07:00} The size and types of case are similar?

{audio:0:07:05} We do get a lot of enquiries. On average, per month, we might be seeing 40 or 50 enquiries from those that are interested in funding. Often, ones that come from individuals or companies directly, may not necessarily be suitable for funding, because they might be too small or they may not have a developed position yet, such that we can really assess them. Typically, if a case comes to us through a law firm because, generally, at this stage, they have a higher understanding of what a funder might be looking for there has, necessarily, been a filtering process, which means the case may be more suitable for funding.

{audio:0:07:50} That is not necessarily always the case. For example, one of my current funded cases came to us directly from a client. They are based in Moscow and India and they didn’t have lawyers involved. They came to us. We have introduced them to lawyers and the case is now proceeding, with our funding.

{audio:0:10:40} Do Omni Bridgeway or any other larger players have an advantage, in any way, to originate deals that other smaller competitors wouldn’t be able to?

{audio:0:10:54} The underlying premise for any litigation or dispute that we would get involved with means that there has to be an underlying legal claim in existence. We can’t originate any kind of investment unless there is that underlying claim. No funder versus another can change that.

{audio:0:12:02} In a general commercial claim, it could be the case that, because of the expertise that we have, as investment managers, we can speak to clients, understand their situation and be able to see that they have a claim. Others, who don’t have that particular experience, might not appreciate that. Having said that, what we would then do is suggest that they get advice from lawyers, from a legal team. We could introduce them to someone or, if they already had an existing set of advisors, they could use them. It’s not really our job to put the case together for them; they need to do that with their lawyers. But we might point them in the direction of suggesting that they had a good claim that they might want to consider further.

{audio:0:12:52} All of our investment managers have years of experience in-house, in private practice, in various contexts, so we might see opportunities that others might not.

{audio:0:13:02} Why are the relationships with law firms important?

{audio:0:13:09} Relationships with law firms are key, particularly at this stage, at least in Asia, where the industry is still relatively nascent and developing, and a lot of cases come through law firms. Obviously, our relationships with them are very important. They need to see us as adding value; they need to see us as a collaborative partner in the dispute, as opposed to an obstacle to its pursuit. Again, all of the backgrounds of myself and other investment managers at Omni Bridgeway, we’ve all worked for top-tier firms. We know what it is like to be in private practice. We speak the same language, effectively. From that perspective, I think that firms find it easy to work with us. They see value in the strategic insights that we bring, because we know what it’s like to be in their shoes. That is certainly a way that our investment management team differs from other funders and does help with the origination process.

{audio:0:14:15} What’s the mix, roughly, between the corporate direct deals and those that come via law firms? How do you see that changing?

{audio:0:14:26} As companies become more familiar with dispute finance, as a tool, as a general means of financing their operations, they will seek to reach out to funders when they are in a dispute. As opposed to now, where they might not be aware of it, so it’s a lawyer that suggests it and then we become involved. I think it will change, over time.

{audio:0:15:19} Let’s say I’m a top law firm and I have a client that has a potential case. How would I choose a litigation funder?

{audio:0:15:33} There are a lot of things that you need to look at in terms of who makes a good partner in providing the finance. Firstly, you have to think about if you want just the provision of finance, or, do you want expertise to come with it. That’s something where Omni Bridgeway is really quite a stand out in that respect. Some funders simply provide the money; they don’t really do any day to day management or engagement on the case. They sit back and wait to see what happens once the case is resolved. In our case, our level of involvement differs according to the case, but we certainly add a lot of strategic value, as the case unfolds and we help to maximize the chances of success, in terms of getting a favorable judgment or an award.

{audio:0:16:20} Another very important factor people think about when looking at a funder is expertise in recovery. It is all well and good to have a judgment or an award issued in your client’s favor, but what are you going to do about getting the money after that? That’s what it boils down to, for everyone. Not so much for the law firms because, often, their fees get paid regardless.  But one of the key things about third-party funding is that it is non-recourse, so success for us means money in the door and, unless money is recovered at the end of the day, we don’t get a return of our investment and we certainly don’t get any return on that investment. The capability to recover funds, at the end of the day, is crucial. Omni Bridgeway is one of a very small group of funders that has in-house capabilities in that respect. This is, very much, something that we have been doing for the last 30 years and our track record is excellent and unmatched. That is something that law firms should take into account on their client’s behalf, when choosing a funder.

{audio:0:17:29} Another positive factor, both from client’s and our perspective, is that Omni Bridgeway is a listed entity, so our financial position is transparent. A third-party funder is a partner, throughout the entire dispute, which can often take three, five or more years. You need to be sure that they are going to be there for the duration. The transparency of our financial position means that it is easy to see that we have the funds, that we are committing to a case and that we will be there for the long term. Those are things that people should consider when looking at who to partner with.

{audio:0:18:11} I’ve got this case and I come to Omni; what’s the typical commercial structure?

{audio:0:18:22} One of the aspects that I like most about working for Omni Bridgeway is the commerciality and the flexibility of the solutions that we can offer. It’s not necessarily the same with other funders. We have rule of thumb criteria that we look for in cases that we are going to invest in, but the approach, generally, is very can-do. How can we make this investment work? What terms can we offer that are going to work for the client and will also work for us? That really means that the financials of any particular deal vary quite widely, depending on what the case looks like.

{audio:0:19:03} Essentially, the criteria that we apply relate to three things. The first is the merits of the case and that is always the same. There has to be good prospects of success or there is no point investigating the case further.

{audio:0:19:16} Is that from a legal perspective?

{audio:0:19:18} Yes, from a legal perspective. The other two criteria that we apply relate to the economics. The second criteria looks at the possibility of recoveries. The other criteria that we look at are the economics of the particular deal. In making an assessment on that basis, we are looking at how much it is going to cost for the proceedings; and how much of that cost is the client looking for us to fund? Are they looking for any additional capital to go with that? Do they need seed funding to investigate the basis of the claim? Do they need any working capital to keep their business going, while the claim is on foot, or just generally? We need to understand the quantum of funding that is being sought and then we need to look at that in comparison to the realistic value of the claim. That is not the headline value of what is actually being claimed, but what we actually think the case is worth. We will then offer terms on the basis of what those two elements look like.

{audio:0:20:33} Generally, pricing can be any number of different structures. It might be that we get a reimbursement of our funded costs and then the return would typically be either a multiple of what we’ve spent or it could be a percentage of the amount that is actually recovered. It could be a combination of those two things. Terms might vary, depending on different factors. For example, up to a certain amount of recoveries, we might recover on certain terms and then, beyond a certain hurdle, we might then recover on a different basis, according to the nature of the claim, the quantum of the claim and how long we think it’s going to take.

{audio:0:21:13} Let’s say, with this claim I’m bringing to you, I’m a law firm, so I still charge my fees. The risk that I’m putting in, is it purely on my fees and my time? How do you look at the risk balance between you, as a funder, and me, as a law firm?

{audio:0:21:39} That differs according to jurisdiction and what is permissible. In the US, for example, where contingency fees are permissible, law firms can also share in the risk of the case. In those circumstances, law firms may already be funding cases themselves and they have the taken the risk onto their own balance sheet, in terms of how much of their fees they are being paid up front and how much they have deferred, on a contingent basis. They might then wish us to step in, at a later point, to de-risk that case or to free up some capital so that they can take on more cases or various other scenarios.

{audio:0:22:19} Those type of arrangements are not permissible in much of Asia. It is allowed in China but in Singapore and Hong Kong, for example, you can’t have contingency fees. Typically, yes, the firm will be being paid, usually on an hourly rate, or it might be on some kind of capped fee arrangement or there might be stages and certain payments applied to the various stages of a proceedings. There are any number of different fee arrangements that might be agreed upon and we can work around whatever those arrangements are.

{audio:0:22:58} How does the difference in the structure of contingency fees in the US and Asia impact the pricing and competition in the market?

{audio:0:23:12} In terms of pricing, if you’ve got a law firm that is acting on contingency, it means, typically, we are not being asked to provide as much capital, which means it will then be less costly to the client. But that is equally the case in Asia if you have a well-resourced client who simply wants us to provide 50% of the ongoing costs and they will cover the rest. It’s not necessarily determinative of the price, in terms of competition.

{audio:0:23:41} I think the biggest difference it makes is that, in places where contingency fees are allowed, we can fund law firms themselves and we will be funding a portfolio of claims with a particular law firm. In Asia, we can’t do that. We can fund portfolios, but they would be portfolios for the same client or cases on a standalone basis for the client, but we are not actually funding law firms.

{audio:0:24:05} Does the fact that you are funding law firms in the US mean that the potential value add is lower? How does the value add that you are providing differ?

{audio:0:24:18} No; I think the value add is still the same. The proposition is just simply where the risk is allocated. In a case where you have a firm acting on a contingency basis and we are also funding, the client has managed to shift the risk to the law firm and the funder. Whereas if it is a contingency only arrangement, the risk has only been shifted to the firm. If it is a funded only case, with no contingency fee, then the risk has just been shifted to us. That’s the real difference, I think.

{audio:0:24:52} Going back to my case, I bring it to you; how do you begin to carry out due diligence on the case?

{audio:0:25:01} This is where our expertise really comes to the fore. This is the way we do it, because we have our own expertise and all of our investment managers are former litigators or dispute resolution professionals. Essentially, the first step is that we ask for a certain number of initial documents so that we can do a preliminary due diligence. We need to have an understanding of those three criteria that I outlined earlier. Firstly, we need to have an understanding of the merits of the case. That means we are looking at both the basis of the claim but also defences that might be raised against it. We are looking at that on an objective basis, not on a “this is our best-case scenario” basis.

{audio:0:25:48} Then, obviously, we need to be able to take a view on the economics. There needs to be some reasonable way to make an assessment of the value of the claim. In some cases, that is quite straightforward and there is no issue. For example, for a breach of contract or something like that, it may be quite clear what the value might be. In other circumstances, it might be the case that some expert work needs to be done, at least of a preliminary nature, to really get an idea of what the claim is worth. Then we would need an estimate from the law firm as to the budget that is going to be required.

{audio:0:26:21} Once we’ve got those three pieces of information, we will do our own intelligence gathering, in relation to the defendant or the respondent, to get an idea of their financial position and whether recovery will be possible. If all of those things stack up, then we like to move really quickly to offering indicative commercial terms. For us, there is no point wasting our time doing due diligence into a case if we can’t agree the basic commercials. We offer the terms at an early stage; it will often only take a couple of weeks to get to that point.

{audio:0:26:57} Once we do have those commercial terms agreed, then we will do our full due diligence process. Again, most of that is usually done in-house, with us. If we feel the need to, we might, at our own cost, get a second opinion on some of the legal arguments or we might need to do further research into the asset position of the defendant and think about the recovery strategy, at that stage. That is always key in our assessment process. We are still looking for comfort on those three criteria and, as long as our further due diligence means everything still stacks up then, we take the case to the investment committee. It is my role, as an investment manager, to present the case to the investment committee and explain why it is a good investment. If they approve it, with the approved budget, we then commence funding the case and start paying the fees, as the case progresses.

{audio:0:27:55} How important is speed in getting back those first indicative terms?

{audio:0:28:02} It really depends on the case and it depends on the jurisdiction. Quite often, we’re in a competitive process. Obviously, if you drag your feet in terms of that initial review and providing terms, then you’re already at a disadvantage. Equally, the pricing of the funding is very important in the decision making of the client. You need to make sure you have done enough work to be able to properly reflect the risk in the pricing you can offer. It’s a balance. Obviously, too much delay is a bad thing; rushing into things is also not helpful.

{audio:0:31:16} Could you just describe or give an example of this expertise or strategic value that you mentioned that Omni could provide?

{audio:0:31:25} I think there are really two categories to that. The first category comes out in the substantive proceedings. Simply, by the sheer volume of cases that we have looked at and worked on in the past, we’ve seen a lot of cases play out. We have seen a number of strategies adopted. We’ve seen a lot of arbitrators or judges in action, so we can provide a lot of strategic insight, as the case progresses, in terms of how it should go ahead. I think that is very valuable.

{audio:0:31:58} Would the law firm come to you and ask your opinion? How does the insight work?

{audio:0:32:04} Generally, the way a case runs on a day to day course of events, the lawyers are running the case. We are not necessarily involved in everything that is happening on the day to day, but for big stuff, important things, pleadings, offers of settlement, procedural steps, we will be copied and we will know what is going on. Certainly, through paying the monthly bills or paying the bills when they come up, we are aware of what is going on in the case and what steps are being undertaken.

{audio:0:32:37} Either the firms will, proactively, ask for our input, if they think we can add anything of value. But certainly, if we see something happening and we’ve seen it before or we’re not seeing something happening that we think could usefully happen, we will raise it with the clients and with the lawyers. Ultimately, the decision as to what to do always rests with the client and is executed by the lawyers. But we do think that, simply by having those kind of discussions and weighing up options with an informed background, means that you are really, in most circumstances, progressing the case in a more strategic and effective way. That is the first area of value add that we bring.

{audio:0:33:18} The second one is on the enforcement side, so actually recovering. As I mentioned earlier, Omni Bridgeway has been successfully recovering against all different types of entities, including sovereigns, in almost any jurisdiction you can think of, for the last 30 years. That means that we have a lot of internal proprietary knowledge about how to do that successfully, in most jurisdictions. If there are jurisdictions where we have been unsuccessful, we know why and, potentially, we either know how to do it better next time or the reasons why it is simply not going to be achievable in that particular place, so efforts and resources aren’t wasted in doing it. I think that is enormously valuable to clients.

{audio:0:34:06} Particularly at the moment, the insights that we can bring, at an early stage, as to whether or not a defendant is going to be a viable target. You don’t want to go through two, three, five years of litigation proceedings against someone, to ultimately find out they don’t have any assets to satisfy the judgment that you get. We can do intelligence gathering at a very early stage, to make that kind of decision. With things like COVID going on at the moment, businesses that you might otherwise have thought were very solid and would not be an issue, our investigations enable us to gain a bit more certainty in relation to their position and really make a more informed decision as to whether to go ahead or not. You can have a coordinated strategy in place to make sure assets are not dissipated or that we simply know where they are, through the life of the case, to continually reassess whether it is still worth pursuing.

{audio:0:36:34} Going back to my example, I’m the law firm and I work with you, at Omni. What is really my expertise in this? If I’m running the case, where does the expertise lie between Omni and a law firm?

{audio:0:36:51} It’s really a collaboration. We will only fund cases that we think have an experienced legal team running them. The day to day issues, such as the writing of correspondence, the making of submissions, the appearance in court, are all done by the law firm. We don’t do that; we don’t purport to do that. While we have, mostly, all done that in the past, we fully recognize that that is not our day job anymore and it’s not our current experience. All of that expertise has to come with the firm. If we don’t think that they have that, we won’t fund a case, even if we think the merits and the economics are strong.

{audio:0:37:27} We think of ourselves as a strategic partner. We are looking to collaborate with the law firm, to provide useful input. Ultimately, we’re not doing the day to day work; we’re not directing how the case is going to unfold. That stays, very much, with the law firm.

{audio:0:37:43} From their perspective and what added value we provide, I do think they value the strategic input that we can bring. It’s not necessarily challenging to their expertise; it helps to augment it, so that we have the strongest and best team, going forward. Also from their perspective, I think we can be very helpful, particularly at stages where pleadings might be going to be filed or other steps being taken, because we are not involved in the day to day, we have a slightly more independent bird’s eye view of the case. When we read pleadings, for example, we’re looking at it more from the way an arbitrator or a judge might look at it. By being a bit less engaged on the day to day, we can take a more global view of what’s being argued or how it is being presented.

{audio:0:38:36} What about the US, where the law firm can take a stake in the claim? Is that a different dynamic?

{audio:0:38:43} I think the dynamic is, ultimately, the same, except that often, the law firm has the added motivation that their recovery is also dependent on success. For us, the working relationship between us and the law firm can be better when all of our interests are aligned. In cases where the law firm is being paid in any case, they might not necessarily assess the merits of the claim or how it’s progressing in quite as critical a manner as they would if it was their own recovery that was also on the line.

{audio:0:39:22} Just getting back to the essence of the relationship with the law firms, is it really the law firm that chooses Omni or the funder, or is it the client?

{audio:0:39:35} Ultimately, it’s the client. We sign the funding agreement with the client and they, obviously, have to agree to the commercial terms. In terms of who the client ends up speaking with, that might be directed by the law firm, in terms of which funders they know or they direct enquiries to. In some jurisdictions, there are brokers who might be approached and who will then approach different funders on behalf of the client or the firm, to try and get a funder involved. There are different ways that the client might end up speaking with different funders, which is jurisdictionally dependent and also relevant to local knowledge.

{audio:0:40:24} But if I’m a law firm, supposedly, I just want to work with the best people on the case?

{audio:0:40:32} From a law firm’s perspective, there will be two different scenarios. If they are looking at a client who doesn’t have the funds to pursue the case without a funder, they will be more focused on the client getting finance, full stop, because then the case can proceed and their fees will be paid. Without the funding, the case won’t go ahead and they won’t be paid. They might be looking at a client who is looking for funding for other reasons, such as they have the money, but want to spend the money otherwise, so they are considering the risk allocation advantages. It depends on the law firm’s level of sophistication and what they understand funding to be, as well. If they appreciate that funding can be much more than just capital, then they would, hopefully, be directing their clients to someone like Omni Bridgeway, who adds so much extra value as well. But if they don’t really have that knowledge, then they might not appreciate that.

{audio:0:41:31} Do you think you can build a leading litigation financier, outsourcing all the due diligence?

{audio:0:41:45} My personal view is, no. I have seen operators in the market who do that. I think you run significant risks. In the past, I was looking at a case that had already been funded by a funder and they were approaching us to co-fund with them. That funder was not like us. They didn’t have any legal background and they didn’t really appreciate the risks of the case. They had looked at the investment from an economic perspective and that was it. It was an investment treaty arbitration and, for those types of cases, the value of having legal knowledge and understanding the risks of a particular claim, being able to assess the underpinnings of the legal advice that you are being given by the lawyers, is very important. There are nuances in those cases. If you don’t understand the legalities and the substantive issues, you simply don’t appreciate the risk. I think it’s very hard to get to grips with the economic of a case if you don’t appreciate the underlying factors.

{audio:0:42:55} You can’t price it effectively.

{audio:0:42:57} Yes; that’s my view. Others take a different view.

{audio:0:47:18} When does recovery become more important?

{audio:0:47:25} In terms of considering the potential to recover, at the end of the day, for us, that’s important from day one. For everyone, that should be important from day one. One of the things that is very interesting and, again, is something from a client’s perspective that we really bring to the table, is that often law firms, if they are going to be paid their fees regardless of the outcome, don’t necessarily think about recoverability at the end of the day. They think about the merits of the case; they think about if they are going to win. They advise the clients on that basis, but they may not necessarily think about how that money will actually be recovered after the award or judgement is made.

{audio:0:48:02} Do the law firms get paid at the end?

{audio:0:48:05} No; typically, they would be paid on a monthly basis, as the case progresses. That’s why, for them, it is often a secondary factor or something that is not given as much thought as it should. The types of funding that we provide fall mainly into two categories. One is merits funding and that’s where we are engaged in the case as it’s going through the merits phase. The other is enforcement funding and we can offer that in conjunction with merits funding or on its own. Enforcement funding means the client has gone all the way through the proceedings, they’ve got their judgment or award and then they need help to recover. Often, we say to them, at the beginning when you were deciding to bring your claim, what work did you do to look into the defendant to see whether you thought you would be able to recover? What advice did your law firm provide you on that? Surprisingly often, the answer is that they didn’t, or there was only very vague advice that doesn’t really say anything.

{audio:0:49:12} It is always a consideration for us. The earlier we get brought in, the earlier that thought process is introduced and so you get clarity on recoverability much faster when we are involved.

{audio:0:49:27} Does this recovery expertise come from experience?

{audio:0:49:33} Yes; it comes from experience and it comes from the development of local networks. Particularly in this day and age, a lot of disputes will be multi-jurisdictional and they will involve different interests in different places. Even if the dispute itself is in a particular location or is more confined, recovery might still be spread out in a number of different jurisdictions around the world. As well as our own particular experience, a lot of how we also add value, is by knowing who to go to in each place. Again, it comes down to the relationships that we have with law firms. We are not doing the day to day but if we know who the best people to go to are, for that day to day, then we’re 100 miles ahead, already.

{audio:0:50:23} How do you think about constructing a portfolio of cases?

{audio:0:50:29} We see portfolios of cases more and more. That can be either portfolios of cases that are already with a law firm, as I mentioned and we’ve talked about already. Or it might be a portfolio of cases that a particular client has. In terms of how we assess a portfolio, it is still the same criteria, but what we are doing is applying those criteria over all of the claims involved and not just to a case on a standalone basis.

{audio:0:50:57} Typically, that means if there are cases where the economics, on their own, don’t work and you also have a couple of cases where the recoveries are sufficient, and we think they would support going ahead with the cases that might not work on their own, we can put them together in a package and provide funding for all of them.

{audio:1:02:52} So it’s more about educating corporates and claimants about the opportunities and the claims they may have?

{audio:1:03:01} That’s part of the work we do. I also think that is going to be a natural progression, regardless of how much we do. The more cases that we fund, some companies will be repeat users. They will use funding in one case; if they have 10 cases, they might then consider using it in the rest of their cases. They will probably also talk about their experience with colleagues, who will then become aware of funding and think, yes, that could be something l could think about for the dispute that I am looking at right now. Plus, there are more funders involved in the market now, so there are more people like me, educating people as part of their day to day job. I think, just by necessity, the number of people who are aware of funding and want to use it, will increase. The number of cases where funding is considered will increase.

{audio:1:03:50} We always see these numbers mentioned, like 5% of total cases are actually funded, or around that number. What are the real barriers to increasing that? How do you look at the evolution of that penetration of funding?

{audio:1:04:07} It’s a balance. People focus on that for a number of different reasons. First of all, you have to have a meritorious claim. A lot of people get upset about the idea of funding, of an uninterested third party taking part in a dispute; people think that that is, somehow, going to interfere with how justice operates, in a bad way. That is not the case. We have no interest in engaging in cases that we don’t think can be sustained on their own merits. It is not necessarily that we need to see that number increase, but there are the other economic factors that have to fall into place for us to be interested in funding the claim. Equally, the client has to also want to take funding on the basis of the pricing that we can offer.

{audio:1:05:05} At the moment, we reject more cases on the basis that we are not interested in pursuing them, than where we offer pricing and clients don’t wish to take it up with us. That might change, over time, but it’s hard to say.

{audio:1:05:20} How do you look at where we are in the lifecycle of litigation financing, as an industry?

{audio:1:05:29} Again, this is quite dependent on region and jurisdiction. There are different levels of development of the industry, in different places. But I think we’re definitely beyond the startup type of environment. We’re now into the market operation where we see people combine, we see some shake up. New entrants come, but they might not be able to stick. We’re in that secondary phase, I think. It’s definitely still in a growth phase; there are numerous areas where funding is being used where it hasn’t been used in the past. Corporate acceptance is definitely increasing and growing and we expect that to continue.

{audio:1:06:21} There are new opportunities for product development. Things that we’re thinking of, in particular, include distressed asset investing, which has not typically been what we’ve done. Defense funding, I also mentioned, is something that I think we will get to grips with, sooner rather than later.

{audio:1:06:42} I see all these numbers being bandied around, such as 800 billion for total legal fees or 120 billion for the top 200 law firms or even two trillion for total claims. How do you look at the potential size of the industry, in 10 years’ time?

{audio:1:07:09} It’s really hard to put numbers on it. The only real gauge you can look at is the size of the legal industry and then make an assessment of how much of that involves cases that are suitable for funding. It is hard because there is not necessarily that much information around. Again, we’ve talked about the US. In relation to court litigation, there is more data available, so you can get a better idea of how much is being spent on legal services. I think there is huge potential for growth. It is hard to say, with certainty, exactly what those figures are, which is why you end up with people discussing these fairly amorphous figures.

Omni Bridgeway: Leading Litigation Finance

Investment Manager at Omni Bridgeway

inpractise.com/articles/omni-bridgeway-funding-cases

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Ruth Stackpool-Moore

Investment Manager at Omni Bridgeway

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Omni Bridgeway: Leading Litigation Finance(November 19, 2020)

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