Napier: chaired working party
Third-party litigation funders thinking of investing in law firms to avoid liability for adverse costs will have to try their luck in front of the court after an important report on contingency fees refused to make a recommendation on whether this should be possible.
Following the Court of Appeal’s Arkin ruling in 2005, which involved a conditional fee agreement (CFA), funders are liable for adverse costs up to the value of their investment. The Civil Justice Council’s contingency fees working party said today that this should be replicated for the new form of funding, which is known formally as damages-based agreements.
By contrast, where solicitors are instructed under a CFA, they are immune from an adverse costs order and the working party – chaired by former Irwin Mitchell senior partner Michael Napier – said this it would be “consistent and sensible to extend the same immunity to lawyers acting on a DBA”.
This has raised the prospect of funders either becoming alternative business structures (ABSs) or investing in law firms so as to avoid costs liability, a possibility which the working party’s report acknowledged.
It said: “There has been some speculation about the effect of ABSs on the liability of third-party litigation funders for adverse costs where the funder has an ownership share in the ABS. However, the working party does not feel that this is a matter that could at this tage by the subject of rules or regulation and is best left to the courts to resolve if and when a question arises in a particular case.”
For a full report on the working party’s recommendations, see the story on our sister site, Litigation Futures.
Are solicitors,etc immune from the risk of an adverse costs order?
A CFA only extends to own solicitor costs which is why a CFA is usually paired with an ATE insurance policy. If the case is lost the ATE insurers foots the opponents bill on behalf of the litigant.
If a solicitor enters into a CFA without ATE Insurance they run the risk of a third party costs order (See for example Adris v RBS). Whilst third party cost orders are rare they are still a risk to solicitor and funder alike.