How has UK litigation funding evolved over the past few years?
Litigation funding is now at a mature stage in the UK. It has moved from conversations around “what is legal finance?” to “how can legal finance support this particular case?”
We ran a survey a few months ago of UK lawyers and found that 73% had direct experience of litigation funding and, perhaps more interestingly, 40% were repeat players.
It’s not just claimants who don’t have the money to pursue a case. Increasingly, we are talking to large corporations about whether it makes sense to spend their own money on litigation or deploy that capital elsewhere in the business.
Why would a large company use litigation funding when it can afford the legal bill?
If you’re a widget manufacturer with a claim against a supplier, for example, you might have £10 million that you could spend pursuing that litigation. But businesses are increasingly asking whether they’d be better off spending that £10 million supporting the business.
Burford can provide monetisation solutions for companies, injecting immediate capital into the business by advancing a portion of the expected entitlement from a pending claim, judgment or award. Businesses can then use that capital as they see fit, including for purposes beyond the legal department.
There has also been a change in what clients expect from law firms. We’re seeing more alternative fee arrangements, including conditional fee arrangements, discounted rates in exchange for an uplift on success, damages-based agreements, fixed fees and capped fees.
Funding can sit behind those arrangements and increasingly becomes part of what a law firm can offer when pitching for work.
Has litigation funding changed how much risk law firms are willing to take?
I think funding encourages law firms to have confidence in their convictions. If you’re acting on a case that you think is going to win, it can make sense to participate in the upside alongside a funder.
A firm might offer a discounted CFA, taking lower fees while the case is running but recognising that, if the case is as good as they think it is, they can get that discount back plus more. That can ultimately produce a better return than simply acting on an hourly basis.
The trade-off is that the firm gives up some fees in the short term and takes on some of the risk of the case. But if its assessment of the case is right, it gets to participate in the upside rather than simply billing for the hours worked.
What does Burford look for when deciding whether to back a case?
We look at the damages profile, the legal merits, the law firm, the barristers and the economics. Ultimately, we’re trying to answer three questions: do we think the case is going to win? If it does, when will it win? And how much will it win?
The sums involved can be significant. In Competition Appeal Tribunal cases, it’s not unusual now to see budgets of £20 to £35 million, with capital potentially tied up for long periods. There are relatively few funders able to finance several of these cases at once.
How is AI changing the way you make those decisions?
Burford has 50 lawyers who have worked across UK and international law firms and in-house legal teams, and we have seen thousands of investment proposals. That gives us a significant amount of institutional knowledge to draw on when the next case comes through the door.
Increasingly, we are overlaying that with an AI database containing information from the investments we’ve looked at across different jurisdictions, types of case, claimants, defendants and law firms.
We also keep monitoring cases after we’ve invested. It is very hard to predict on day zero exactly how and when a case will resolve, so we feed new developments back into the model as the case progresses to refine those predictions over time.
What does the next phase of litigation finance look like?
We’re increasingly working with FTSE 100 and other international companies where using funding is simply a financing decision. At the same time, what funders provide is expanding beyond financing the fees and expenses of a single case. We work with businesses and law firms to fund portfolios of cases, as well as with businesses on monetisation deals.
The other area I think we will see much more of is investment in law firms themselves. AI is going to require firms to invest significant sums in technology. Instead of armies of associates doing document review at £400 an hour for four months, they will build an expensive AI machine to do that work, with lawyers providing the higher-value analysis.
Law firms don’t necessarily have access to the investment needed to make that transition. External investment in law firms has been possible for years, but I think AI is going to turbocharge that.