1.

Commercial legal finance basics

1.1

How is commercial legal finance defined in your jurisdiction?

1.2

How does commercial legal finance differ from consumer litigation finance and contingency agreements?

1.3

What are the major legal finance products/solutions in your jurisdiction? (a) Single case fees and expenses; (b) Portfolio fees and expenses; (c) Monetisation of claims; (d) Monetisation of judgments and awards and (e) Other

1.4

In what areas of law is litigation finance most prevalent in your jurisdiction (eg, competition, insolvency, patents, contracts)?

1.5

Who are the major players in the industry (eg, pure players, multi-strategy firms, start-ups)?

2.

Legal framework

2.1

How mature is the market for legal finance in your jurisdiction? What types of commercial litigations and/or arbitrations may be funded by a third party?

2.2

Is there a dedicated legal finance regime in your jurisdiction? What other laws and regulations have relevance to legal finance in your jurisdiction?

2.3

Which public sector bodies and authorities are responsible for enforcing the applicable laws and regulations? What powers do they have?

2.4

Do the rules and codes of any self-regulatory organisations or professional associations have relevance to legal finance in your jurisdiction? What powers do such organisations and associations have?

2.5

What is the general attitude towards legal finance in your jurisdiction among the courts and other relevant bodies?

2.6

Is legal finance considered consumer credit and is it captured by the relevant protective regulations in your jurisdiction?

3.

Other risk-sharing models available to litigants and law firms

3.1

Are conditional (contingent or success) fee agreements permitted in your jurisdiction? In what circumstances are they typically used? What are the advantages and disadvantages for clients and for law firms?

3.2

What is the maximum contingency that is permitted (ie, up to 100% of hourly fees or something less)? Is there a cap on the amount of success fees lawyers can receive under such arrangements?

3.3

Are damages-based agreements permitted in your jurisdiction? In what circumstances are they typically used? What are the advantages and disadvantages for clients and for law firms?

3.4

What other funding and/or risk-sharing options are available to litigants in your jurisdiction? In what circumstances are they typically used? What are the advantages and disadvantages for clients and for law firms?

3.5

Are law firms in your jurisdiction allowed to have non-lawyer owners or non-lawyer shareholders?

3.6

How do the available funding and risk-sharing options impact on the attitudes of corporate litigants about affirmative recovery programmes or the pursuit of high-value commercial claims more generally?

3.7

How do the range of funding and risk-sharing options available impact on the attitudes of law firms about their own business?

4.

Collective actions

4.1

Is it possible to bring collective actions in your jurisdiction? If so, can they be funded by third parties? In those circumstances, how is the amount of the funder’s return determined? Are there caps or other restrictions? Do such agreements require court approval?

4.2

How significant is the funding of collective actions in your jurisdiction relative to the use of legal finance by individual commercial litigants?

5.

Securing financing

5.1

What factors will a funder generally consider when evaluating whether to fund a case?

5.2

What should a litigant or litigant’s counsel look for in a legal finance partner?

5.3

What is the typical process for concluding the legal finance agreement?

5.4

What terms does the legal finance agreement typically include?

5.5

Do any caps apply to the funder’s fees?

5.6

Can the funder terminate the legal finance agreement before the litigation has ended? If so, under what circumstances and what are the implications?

5.7

Under what circumstances (if any) must funding be approved by the court in advance?

5.8

Have there been notable disputes arising from legal finance agreements, and if so, what can a litigant or counsel do to avoid such disputes?

5.9

Is the funder bound to fund any counterclaims arising from the funded litigation?

6.

Purchasing a litigation claim, judgment or award

6.1

Can the funder purchase legal claims?

6.2

How does a funder purchase a claim out of an insolvency?

6.3

Are final judgments and/or mere causes of action assignable in your jurisdiction and is there a regulatory framework governing this?

7.

Role of the funder

7.1

Can the funder influence the litigant’s choice of counsel?

7.2

Can the funder attend and/or participate in the court proceedings?

7.3

Can the funder influence the acceptance or terms of a proposed settlement agreement?

7.4

In what other ways can the funder participate in, and exert influence on, the litigation?

8.

Ethical considerations

8.1

In what circumstances (if any) is it necessary to disclose a legal finance agreement to the court or to the opposition? What specific information must be disclosed?

8.2

Are communications between the parties to the legal finance agreement subject to privilege in your jurisdiction?

8.3

Does the rule of attorney work product apply to documents generated for the purposes of securing legal finance in your jurisdiction?

8.4

In what circumstances (if any) do rules about fee-splitting impact on the use and practice of legal finance?

8.5

Do the doctrines of champerty and maintenance apply in your jurisdiction?

8.6

Are there any types of proceedings (family, private prosecutions) for which funding is not permitted?

9.

Proceedings

9.1

What is the typical timeframe for first-instance proceedings in your jurisdiction?

9.2

What are the opportunities in the litigation process for a case to be struck out prior to a trial?

9.3

How much party discovery of evidence is permitted in your jurisdiction? Are there procedures for seeking or compelling evidence from non-parties?

9.4

Are interlocutory appeals (appeals of non-final judgments) permitted during proceedings in the first instance?

9.5

Are first-instance decisions commonly appealed in your jurisdiction? What is the typical timeframe for appeal proceedings?

9.6

How are decisions typically enforced in your jurisdiction? What is the typical timeframe for enforcement proceedings?

9.7

Is there an automatic stay on enforcement pending appeal or under what circumstances is one granted? Are appeals from first instance granted as of right?

10.

Costs and insurance

10.1

Will the court order the losing party to pay the costs of the winning party? How else might costs be allocated between the parties and under what conditions?

10.2

Are some or all of the costs of funding recoverable by the winning party?

10.3

Can the court order costs against the litigation funder?

10.4

Can the court order security for costs? If so, in what circumstances will it generally do so and how is this calculated and provided?

10.5

Is security for costs commonly ordered in funded litigation?

10.6

Is after-the-event (ATE) insurance allowed in your jurisdiction? If so, how mature is the market?

10.7

In what circumstances is ATE insurance typically used? What are the advantages and disadvantages?

10.8

What other types of insurance are available for litigants in your jurisdiction? In what circumstances are they typically used? What are the advantages and disadvantages?

11.

Trends and predictions

11.1

How would you describe the current legal finance landscape and prevailing trends in your jurisdiction?

11.2

Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

12.

Tips and traps

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