Our Costs and Funding team focuses on high-value, complex disputes relating to legal costs, litigation funding and legal expenses insurance. We also assist parties to high-value disputes in negotiating and securing favourable terms for alternative funding arrangements, whether with their lawyers, third party litigation funders and/or insurers.

Our team brings together deep subject matter expertise of commercial litigators, policyholder disputes specialists and cost lawyers, enabling us to deliver highly effective solutions for our clients.

Even when another firm has represented parties to litigation or litigation funders in drafting the original fee or funding agreements or in the substantive litigation, it can often be advisable or necessary to seek independent advice and representation when disputes or potential conflicts of interest arise.

Our pioneering position in the market

Stewarts has been a leader in the field of costs and funding for over 25 years. We were early adopters of conditional fee agreements (CFA), after the event (ATE) insurance, third party litigation funding and damages based agreements (DBA). We have also been prominent in campaigning for law reform in relation to cost and funding issues to enhance options for our clients.

We regularly receive complimentary feedback from litigation funders and ATE insurers that our approach to securing the best terms for our clients is the most rigorous they have experienced.

Costs and funding disputes

We can assist with negotiation and representation in:

• inter partes costs assessments
• solicitor and client costs assessments (including where allegations of unenforceable fee agreements such as a CFA are raised)
• cost sharing disputes in group litigation
• mediation, expert determination or arbitration under dispute resolution provisions in the fee or funding agreement
• professional negligence claims relating to lack of advice on, or suitability of, alternative funding arrangements or ATE insurance
• post-PACCAR litigation funding agreement enforceability disputes
• insurance coverage or legal expense payment disputes relating to ATE, professional indemnity insurance (PII) and directors’ and officers’ insurance (D&O) policies.

Recent reported decisions on costs and funding-related issues we have been involved in include:

• whether multiple claimants should be severally rather than jointly liable for the defendants’ costs, how their liability for adverse costs should be apportioned and the circumstances in which a litigation funder may be ordered to provide security for costs (that was claimed at approximately £11 million): [2020] EWHC 235 (Ch)
• successfully resisting an application to set aside a default costs certificate for US$3.7m, with the costs judge concluding that the failure to serve points of dispute in time is a serious breach of the rules and that there was no good reason for the detailed assessment proceedings to continue: [2021] EWHC B7 (Costs)
• successfully opposing an appeal against the decision of a senior costs judge to dismiss a solicitor-client assessment on the grounds that the client/appellant’s points of dispute were too generic and did not identify specific points: [2020] EWCA Civ 178

Litigation funding advice

In the past few decades, numerous significant disputes have occurred between funders, claimants and/or their lawyers. As demonstrated by our statistics, we have a wealth of experience in assisting clients to secure the best funding terms to meet their needs in relation to their high-value and complex claims:

The pricing and terms of litigation funding agreements vary enormously. Consequently, the choice of funder is crucial. Unlike other firms, we are not tied to working with just one or two funders. Rather, we regularly review and update a panel of funders with the best credentials to suit our clients’ needs. Our due diligence process also probes each prospective funder’s capital adequacy and ability to meet security for costs requirements.

If a client has a high-value commercial dispute with attractive merits, economics and duration, it is likely they will be able to secure litigation funding. However, the financial and other terms of litigation funding agreements can vary in several important ways. The termination provisions and priorities agreement for the order of the distribution of the proceeds are particularly important. This can significantly impact the control of the litigation, the flexibility to respond to developments and, ultimately, the balance of the proceeds left for the client.

We have a strong track record of securing innovative funding terms for our clients through our experience in assessing, modelling, and advising on one-off and portfolio funding arrangements for institutional clients and law firms.