Third party litigation funders are regularly asked to fund security for costs payments as well as legal costs and disbursements, particularly in insolvency cases where security applications are commonplace. Such cases tend to be less attractive to funders because of the large capital outlay and the length of time for which funds are deployed. However, on 24th May 2018 Mr Justice Marcus Smith handed down his judgment in the case of Absolute Living Developments Ltd [2018] EWHC 1432 (Ch) in which he dismissed the Defendant’s application on grounds that would appear to apply to most insolvency cases.

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Whilst the general rule in the courts of England and Wales is that the loser pays the winner’s costs, it is important to remember that the court has a wide discretion when it comes to costs orders. Section 51 of the Senior Courts Act provides that the Court shall have “full power to determine by whom and to what extent the costs are to be paid”. It is for this reason that when considering the economics of funding applications, third party funders usually take no account of the possibility of recovering costs from the opponent.

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On 11 April 2018 the government published a discussion paper in which it seeks views on how to tackle tax payers who seek to avoid or evade their tax liabilities through the misuse of the insolvency regime including phoenixism.

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Litigation is a potentially risky and expensive undertaking. Clients rely on their solicitors to inform them of the potential cost of pursuing a matter, including the risk of having to pay someone else’s legal fees, when making their decision as to whether the potential outcome is likely to justify the expense.

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As third-party litigation funders, we are often asked by insolvency office holders whether we are interested in acquiring claims as opposed to funding them. The answer to that question depends on the type of claim because not all claims are capable of assignment.

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When I made the move from being an insolvency lawyer in private practice to working in litigation funding, being a firm advocate of funding myself, I was surprised at the level of scepticism with which I was met from insolvency practitioners especially. One former client in particular told me that he held funders in low regard because they only ever cherry picked the best cases.

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Less than two years ago, the term “fake news” was not recognised by the majority of people. Although a tool used by governments and powerful individuals for centuries to spread disinformation, boost their support and quash dissenters, the term came to prominence in the US Presidential election of 2016, primarily as a means by which Donald Trump could dispel any negative story about his campaign.

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Our Managing Director, Maurice Power, was honoured to be invited to be the first international contributor to the Litigation Finance Journal’s weekly podcast. During the interview, Maurice gives an insight into litigation funding in the UK, how Ferguson Litigation Funding came to be and the impact Brexit may have on UK litigation.

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