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
