Commercial Litigation Funding

Useful Information and Advice

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Advice when making an application for After the Event insurance or funding

Applying some consideration to the presentation of the case can be invaluable. Some underwriters and funders will reject over 50% of the cases that they see, so it is imperative to ensure that the case is presented in a clear and concise format.

The following are some key points to consider:

1. Provide a case summary
Whilst the pleadings or Counsel’s advice (if available) may well provide a useful summary of the background and important facts, underwriters and funders generally like to see a covering letter or short summary from the instructed lawyers setting out the circumstances and the proposed case strategy.

In some cases, a chronology of the key events in the case and the proceedings is an invaluable presentation tool. Likewise, in complex contractual disputes, a graph or diagram to explain the role of each party involved can speed up the application process and provide clarity.

2. Detail why you believe your client is likely to succeed in your covering letter

If you believe the client has a good chance of success, then it is helpful to summarise why you believe this to be the case in your covering letter. This will demonstrate to the underwriters/funders that you have considered the issues and will show how you have arrived at your reasoned conclusions.

Where possible, comment on any commercial aspects of the case which you might feel will not be readily apparent from the pleadings or correspondence. If there are settlement pressures at key stages, highlight them and explain why they exist.

A useful approach is to pre-empt the opponent’s possible arguments (if they are unknown) and detail why you believe that such arguments are flawed. You should always bear in mind that the underwriter/funder is an independent third party with no prior knowledge of the case, so it is crucial to provide enough information to enable them to understand your assessment of the merits.

3.  Detail your view on claim value (if monetary remedy) and enforcement

A realistic valuation of the claim is always important, however funders, in particular, will need to be confident that the estimated claim value is as accurate as possible and that there is a good chance that any award will be enforceable. TheJudge proposal form contains some questions on this issue, however where appropriate, please provide any additional information in your case summary, including what steps have been taken to ensure that the opponent will be able to satisfy any award, if they are not insured.

By default, TheJudge seeks out quotes with deferred premiums but a high proportion of the rejected cases are rejected due to lack of certainty with regards to enforcement. If enforcement is a perceived risk in your case, consider whether the client has the capability to remove that risk from the insurer by paying some or all of the premium upfront.

4. Supply the material documentation in support of the case
Whilst underwriters/funders will take into consideration the solicitors and/or Counsel’s views on the prospects of success, ultimately they will need to form their own views on the merits of the case.

Accordingly, it is necessary for underwriters to see all the material information in support of the case. That said, if the documentation is particularly voluminous, with some information less relevant than others, then it is generally prudent to inform the underwriters that you are supplying what you consider to be the material documentation but that additional documentation can be made available if required upon request. A schedule of the documents that are available can be a very useful way of achieving this.

5. Refer the underwriter/funder to key documents

Remember, you will know the case better than the underwriter/funder. Accordingly, to save time it can assist to highlight the crucial supportive documents in your case summary.

6. Use the team at TheJudge

If you have any queries when preparing the application, please do not hesitate to contact us.