Insights

Thoughts and opinions on industry issues and trends.

Greg Williams, Blair McEwan, James Walker and Annie Achie of Clayton Utz summarise the Full Federal Court's decision in LCM Funding Pty Ltd v Stanwell Corporation Limited and predict that it will restore Australia's status as a highly attractive market for investment in class actions due to the low barriers for commencement of a claim and minimal regulatory burden on funders (in particular, overseas-based funders).
Tets Ishikawa of LionFish Litigation Finance weighs in on the litigation funding disclosure debate, suggesting that with courts and tribunals increasingly showing they are not being swayed by the potential abuse of the disclosure process by defendants, perhaps it is an opportunity for the litigation funding industry to be proactive and initiate a standard disclosure template for courts and tribunals globally to address this battleground once and for all.
Andrew Cohen of Burford Capital reviews the first decision from the New York Appellate Division that directly addresses the discoverability of legal finance materials, noting that the ruling in Worldview Entertainment Holdings Inc. v. Woodrow affirms the denial of a motion to compel production of, inter alia, litigation funding documents, as the defendant failed to explain "how discovery about litigation financing and witness payments would support or undermine any particular claim or defense."
The Full Court of Australia has ruled that litigation funding arrangements should not be considered managed investment schemes. In a judgment dated 16 June 2022, the Full Court of Australia  has sided with LCM in its appeal of the decision of the primary judge in Stanwell Corporation Limited v LCM Funding Pty Ltd. As a result, litigation funding arrangements in Australia will no longer be considered managed investment schemes, and litigation funders will be relieved from the burden of a "legislative and regulatory regime characterised by uncertainty, inconvenience and the potential for mischief by class action respondents."
Quentin Pak of Burford Capital reports that the Singapore High Court has recently allowed the liquidator of insolvent Castlewood Group to enter into a litigation funding arrangement, with the court’s brief remarks on the decision providing another indication that the use of legal finance in insolvency is becoming more established in Singapore in Singapore reaffirms the applicability of legal finance in corporate insolvencies.
Lake Whillans shares the highlights from its annual survey of in-house counsel and law firm attorneys, noting that a majority (62%) of the lawyers surveyed have firsthand experience working with a litigation finance firm, up over 20% from four years ago in 2022 Litigation Finance Survey Report.
Sarah Breckenridge of Erso Capital notes that it has become market practice – in competition claims but more widely in litigation – to require claimants to obtain (at further cost) an Anti-Avoidance Endorsement or deed of indemnity in favour of the defendant to augment an ATE policy but explains how, in the recent case against Qualcomm, the claimant's lawyers were able to convince the Competition Appeal Tribunal that this extra insurance was not necessary in Consumers' Association V Qualcomm Incorporated: Preparing To Fight On Anti-Avoidance Endorsements.
Jacob Varghese of Australian law firm Maurice Blackburn marvels at how the digital revolution has bizarrely increased the overall cost of litigation despite the world becoming more productive in many other areas and points to litigation funding as a tool that corporate counsel should embrace - not to make litigation less expensive - but to make losing less expensive.
Sylvie Gallage-Alwis and Gaëtan de Robillard of Signature Litigation report that both the Court of Justice of the European Union and the European Court of Human Rights are currently grappling with a number of significant climate litigation cases and argue that we should not be surprised if at least some of these cases succeed in creating powerful precedents moving forward.

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