LEXPERT MAGAZINE
|
OCTOBER 2017 47
| LITIGATION FINANCE |
advisor. She's done ones where
the client has financed the entire
case. Asked about the difference,
from counsel's point of view, she
says using a funder has many ad-
vantages, including the participa-
tion of a partner "that's very ex-
perienced in litigation to bounce
ideas off of." ey don't control
the process, the client does, she
stresses, "but they're there to pro-
vide input, which is quite helpful
as counsel. And they can provide
a level of financial sophistication
you don't always have access to."
Seers's practice area specializes
in investor-state arbitrations, in
which private companies have a
right to bring a claim against for-
eign governments. She has never
used a third-party funder in an
all-Canadian case, but she ex-
pects that it will become increas-
ingly common.
e UK has been using pri-
vate-company litigation fund-
ing for 20 years, she says; the US
for at least a decade. In the new
Canada-EU free trade pact, there
are even provisions involving
third-party funding and what needs to be
disclosed to the tribunal, what doesn't. "So
it's getting quite sophisticated now. But call
up 12 random litigators on Bay Street and
ask if they have been on cases where clients
have used third-party funders, and I bet
they'll all say no."
MAUREEN WARD of Bennett Jones
isn't one of them. Ward worked on two
files where the client was using third-party
the plaintiff, the funder and the file. It was
a good experience doing that." Ward is a
fan because, like Siller, she sees litigation
finance as helping companies deploy their
capital more usefully than in litigation.
"We've all seen cases that we think have
merit but where the client just didn't want
to take the risk, no matter how small. Ev-
eryone worries about money, especially
someone at a desk who is being pressured to
keep their costs down — in-house counsel,
litigation funding and one file "where I was
seeking funding by engaging with three
different funders to see what terms they
would give. I went down quite a road with
each of them, and it turned out it was such
a large case and the merits were really in
question because of the novelty, so it ended
up not getting funding."
Still, she calls it an education on how not
all funders are alike, and "how the terms
are different and what they can mean for
"It's getting quite
sophisticated now,
but call up 12 random
litigators on Bay Street
and ask if they have been
on cases where clients
have used third-party
funders, and I bet they'll
all say no."
MYRIAM SEERS TORYS LLP
PHOTO:
SHUTTERSTOCK
