How to Fund Litigation — Practical insights series (Part three: Maximising your chances)

Having already looked at the cost of litigation and what information you need to apply for funding, litigation expert Jack Bradley-Seddon now tackles the question, how can I maximise the chances of securing litigation funding?

For litigation solicitors seeking to secure litigation funding on behalf of a client, we emphasise three key things:

1. Establish relationships

In litigation funding, relationships are an important part of the way the market operates. It’s therefore very useful for litigation solicitors to have established a relationship with an individual at a litigation funder prior to applying for funding. Consider taking this approach a stage further by seeking an early conversation or a ‘soft steer’ on a particular case. Most experienced funders have a good sense of what can and cannot work and are happy to provide ‘negative clearance’ – in other words, if they hear something during the first conversation that they know won’t work, they can tell you. Seeking such a steer can, in principle, be done at any stage. That said, if you and your client are not yet ready to transact, it is best to say openly that you, as the litigation solicitor, are not yet in a position to seek litigation funding for the case and are simply seeking a soft steer.

2. Expect the unexpected

Do not assume what will or will not be needed, or what can and cannot be done; funding is in essence a separate area of professional expertise, with funders exercising significant commercial judgment (which by its very nature cannot be precisely predicted). Beyond the basics, this is a ‘human process’ and there may be a solution or a workaround, or indeed a barrier, that has not been thought of or considered prior to approaching the litigation funder.

3. Be aware of timings

Apply when you are ready to transact, and try to inject momentum into the process. Funders do not just manage capital, they manage time. The deals on the desk that get done are often the ones that demonstrate a keen desire to move forward, whereas the ones that start the application process and then stall, or delay in doing what is required, can easily slip down the priority list. Creating momentum, while not necessarily obvious or intuitive, can have a real impact on the chances of successfully securing funding.

Written by Jack Bradley-Seddon, a partner at Thaxted Capital and a former litigator in the London office of the US law firm Akin Gump Strauss Hauer & Feld.