The Cayman Islands is the latest to embrace litigation funding, says Burford's Michael Redman.
As 2017 came to close, one small but well-known corner of the globe became the latest jurisdiction to open its arms more widely to litigation finance. With its decision to do so, the Cayman Islands joined the vast majority of the common law world in embracing third-party funding, coming within 12 months of Singapore passing a bill to allow for funding in arbitration matters. The ruling at the Grand Court of the Cayman Islands is especially significant given the prominence of the Cayman Islands in international business litigation. The matter—"A Company and A Funder”—represented a considerable expansion of the Cayman jurisprudence related to litigation finance.
The facts go like this: A large Korean company had a significant claim and wished to use Burford’s third-party funding—not because it had to due to financial constraints, but rather because it wished to given the cost and risk management as well as accounting advantages of doing so. As is increasingly common in how corporates are using litigation finance, the South Korean company sought to finance its claim just as it would seek to finance any other aspect of its operations. Its decision would take the litigation spend off its balance sheet and free up funds for other business matters.
However, because Cayman decisions on litigation finance have heretofore been limited to its use by liquidation estates, the Korean company sought assurance from the Grand Court that its use of outside finance would not be unlawful and would not constitute maintenance or champerty, archaic doctrines that have not yet been formally abolished in the Caymans.
The Court responded with a landmark decision, bring about the broadening of the use of litigation finance in the Caymans beyond insolvency—a decision that will most certainly influence other jurisdictions.Indeed Segal J made clear that “Cayman has an important, world-class court system and litigation culture and there is no reason why responsible, properly regulated commercial litigation funding undertaken in accordance with the principles I have set out should not have a place in this jurisdiction.”
More importantly, as set forth by the judge, “It does not seem to me that… there is any reason why this jurisdiction should treat with greater circumspection or impose additional constraints on commercial funding of litigation in this jurisdiction.” He added: “I take into account that this is not a case involving an impecunious plaintiff who would be unable to bring the proceedings without the benefit of third party funding. That is a relevant factor but should not in my view be determinative. There are clearly benefits that may flow from allowing plaintiffs [with] genuine claims the opportunity to litigate them on terms which they consider to be commercially attractive and provide them with a better risk-reward ratio than if they were to fund the costs of the litigation themselves.”
The principles set out by Segal J hew closely to the most important considerations that clients and law firms already bring to their own diligence of commercial litigation funders. Among other factors, Segal J cited the need for the funder to be a member of a professional body such as the Association of Litigation Funders (of which Burford is a founding member) ). He further cited issue of control, strongly arguing that the funder should not seek to control the litigation (as Burford never does).
Those who read the judgment carefully will note that the “Funder” in “A Company and A Funder” is identified by Segal J. as “a member of the ALF (and a long established professional finance provider of repute in the legal profession and listed on the London Stock Exchange).” Although not identified by name in the judgment, Burford is obviously the only firm meeting that description.
The decision is key and follows moves by both Singapore, and before it, Hong Kong, to accept litigation finance – and at the same time, accept that corporate entities and lawyers alike have a wish and demand to use it -- in a bid to vie for position with other global dispute resolution centres. Given Cayman’s standing in business litigation and its prominence in the offshore world, where asset recovery also features so prominently - it is a fair bet that in 2018, even more jurisdictions will follow its example.
Michael Redman is a Director and co-head of Burford Capital’s global corporate intelligence, asset tracing and enforcement business.