Lexpert Magazine

October 2017

Lexpert magazine features articles and columns on developments in legal practice management, deals and lawsuits of interest in Canada, the law and business issues of interest to legal professionals and businesses that purchase legal services.

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44 LEXPERT MAGAZINE | OCTOBER 2017 FEATURE THE LEGAL WORLD is changing fast and in unexpected ways. Take third-party litigation funding, which used to be the domain of personal injury lawyers and class ac- tion firms. In Ontario, encouraging litigation for a share of the recovery — a practice known as "champerty and maintenance" — is still banned, although recent jurisprudence has made allowances for instances where funding facilitates access to justice. is shi in perception has paved the way for new players, along with new types of cli- ents and some surprising new champions, including corporate defence litigators. "ere's been almost a seismic shi in the last 18 to 24 months," says Naomi Loewith, a former litigator at Lenczner Slaght Royce Smith Griffin LLP for 10 years before joining Bentham IMF Capital Ltd., a global litigation funder. She is not alone. Maureen Ward, a corporate and commercial litigator at Bennett Jones LLP in Toronto, calls litigation funding "great" and predicts "it's going to become increas- ingly mainstream in Canada, especially on large, complex commercial cases." Geoffrey Holub, a litigator at Stikeman Elliott LLP in Calgary, says litigation funders "are filling a void" in the Canadian litigation market. at may be because, where funders here used to help cover cost awards, indemnify plaintiff and occasionally fund disburse- ments, many now pay full legal fees. And rather than confining themselves to class ac- tions, they have become increasingly involved in funding private commercial cases. ird-party funders are finding a wealth of clients in commercial arbitrations, which can be very expensive up front. Holub, for example, had a client in the oil and gas industry that wanted to arbitrate what it felt was an unfair expropriation before the International Chamber of Commerce. e ICC requires parties to post substantial advance costs up Litigation Leveraged LITIGATION FINANCE, AS A CONCEPT AT LEAST, HAS BEEN AROUND. BUT A HOST OF NEW PLAYERS WITH CREATIVE LEVERAGING STRATEGIES ARE NOW PAVING THE WAY FOR WHAT COULD BECOME A FORCE IN THE PROFESSION BY SANDRA RUBIN PHOTO: SHUTTERSTOCK

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