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They are just used to the debt/equity risk. Whether the disputes are with our co-investors, funders or very occasionally professionals, real estate developers quite like the idea of a third party taking on risk. Hamish Lal, Akin Gump Strauss Hauer & Feld: One sector where we do see corporates wanting to act as claimants is in real estate, especially in London. If you attract funders that is because they think there is money down the track. I get to keep the lawyers I want who I think are good, and it is on a cost-free basis, so it will come back if you get some money later on down the track. I want a cost-free solution’, so I say to my external lawyers: ‘Here, you do it.’ I like these lawyers. The idea of spending the space, time and resource to look at going out there to see where we can be more aggressive is something that is difficult at the moment although I can never rule it out.Ĭraig Arnott: What is attractive then is you think, ‘Okay, I do not want to spend my time or my staff’s time on doing this. We are facing so much litigation against us that my role as GC sometimes feels like it is just dealing with that. It is difficult at the moment to see how it could be a positive thing in any way. Mark McAteer: Angus, would there be difficulty in persuading the board to view litigation in that light?Īngus McBride, News UK: Litigation is the bane of our lives. Matthew Redding, EE: The business is used to receiving revenue opportunities from departments other than the legal team. We are going to make lots of money for you.’ That is a big shift. We found something you did not know you had. I hope we never see you again’, whereas we should be saying to them: ‘Here is the good news.
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How often have we been told, when we finish a case, ‘Well, thanks a lot. Guy Harvey, Shepherd and Wedderburn: It is a psychological issue, which is enormous for people who have been brought up to believe that litigation, even as a claimant, is a pain in the backside. However, if you then go along and say, ‘Here is a cartel claim’ or, ‘Here is a claim you may not have thought about but here is a funder who is willing to fund it and take it off your balance sheet’, it then becomes an opportunity. Sean Upson, Stewarts Law: We talk to a lot of corporates and the answer that comes back is that budget is largely used for ‘defensive purposes’.
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Mark McAteer: Are corporates acting as claimants more? Is there a driver to use litigation as a way of generating revenue for the business and adding value? Some of them can be dealt with as a book but a lot is bespoke, very high value, high reputational worth defence work that involves particular individuals within the organisation. Obviously, there are different books – very different – of business within our portfolio. We have had discussions with funders but nobody has come up with a particularly compelling model for funding a defendant portfolio. Richard Blann, Lloyds Banking Group: We are the defendant in the majority of our cases. Mark McAteer, Legal Business: Richard, some years ago you were quoted as saying that you do not use funders but you were not saying that you never would. ‘If you attract funders that is because they think there is money down the track.’ By paying, we believe we have control.’ Things have changed significantly since then, but I am not sure it has changed exponentially. It sounds a bit odd, but it is the control. The response was interesting: ‘We like paying legal costs. The lawyer there was very interested but he came back about a month later and said the necessary people were interested but not at the moment and we asked why. The offer was for them to select some cases, give them to us, and if we considered they had a good chance of success then we would do them effectively at no cost, which had the benefit of removing the cost risk from the balance sheet. Tim Brown, RPC: Several years ago we went to a bank and spoke to somebody fairly high up about the possibility of them instructing RPC to act for them under 100% CFAs. It seems a little crude, but it is an outsourcing alternative for corporates that involves financing in a way that would be thought of as outsourcing before, but is a way in which they can take books of business off their balance sheet.
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It is just at the start of the change, especially on the corporate side and what possibilities there are for outsourcing. That has transformed, largely because of cost pressure.
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Craig Arnott, Burford Capital: Litigation finance used to be perceived as a last-ditch resort for impecunious clients.