Litigation For The Greater Good

Most people assume justice is available if you have been wronged. The harder truth is that many of the biggest harms are invisible, shared across millions, and too expensive to challenge alone. We explore how litigation for the greater good actually works when the defendants are well resourced, and the real losses sit inside things like pensions, consumer purchases, or communities harmed by environmental damage, and the defendants are well resourced.

Hosted by Anna Gilbert, Divisional Director within Howden's Litigation Risk Management team, and joined by Hausfeld lawyers Lucy Pert and Simon Bishop, together they unpack the idea of “law as a force for good” beyond the usual soundbites. We talk through climate and human rights style claims, but also the less obvious cases that still protect society: emissions litigation, competition and consumer redress, and securities claims where misleading markets can affect huge groups of investors and everyday pension savers. Along the way we discuss how claimants are identified when they don’t even know they’ve suffered harm, and why collective actions and group litigation can be the only realistic route to accountability.

We also get practical about the machinery that makes these cases possible. Third-party litigation funding, ATE insurance and newer own-side cost insurance can shift risk off balance sheets and open the door to fairer pricing and more options. We look at how regulators and private enforcement interact, why deterrence matters, and what might change next, from procedural reform for collective redress to the growing role of AI in securities disclosures and trading. If you’re curious about litigation funding, legal costs risk, collective redress, or how insurance supports access to justice, please visit our website or get in touch with Anna Gilbert.

Transcript

Speaker 2 0:04

Welcome to Howden's Podcast, Fortune Favours the Brave. We all take risks in our everyday life, and business is no different. In this podcast, we're speaking to the experts about the topical challenge or issue and what business leaders can do to overcome it.

Anna 0:19

Welcome to this episode of Fortune Favours the Brave. My name is Anna Gilbert, and I'm a lawyer working as a broker within Howden's litigation risk management team, where I help clients to secure litigation funding or insurance to support their legal claims. In this episode, we will be covering how insurance and funding support litigation for the greater good. And I'm delighted to be welcoming two lawyers from Hausfeld, which is an award-winning litigation disputes firm. I have with me Lucy Pert, who leads Hausfeld's dispute resolution team as its co-head. Lucy has extensive experience litigating high-stakes cross-border commercial disputes. I'm also joined by Simon Bishop, who is a partner with a particular focus on disputes relating to banking and financial markets. So before we get started, Simon, can you tell us about a risk you have taken in your personal or professional life and whether it paid off?

Simon 1:15

Yes, I can. It's good to see you, Anna. So I think my answer to this would be: I actually worked in banking and financial services before going into law. And one of the big risks I think was moving out of that. I was working in Sydney at the time, had a job offer on the table from the bank I was with at the time, really wasn't enjoying it and decided to go to law school. And I think it did pay off because I'm here talking to you.

Anna 1:39

I'm very pleased to hear it. Lucy, what about you?

Lucy 1:42

Well, I'll go with a professional one as well. I don't know, perhaps the personal ones are more interesting. But I uh was working at Freshfields and I decided to leave Freshfields to join a small uh firm. It was starting up in London. There are only three or four lawyers there, and a lot of people said to me, Why on earth would you, you know, leave a magic circle firm to go and work for this absolutely no-name uh little startup, which was actually Quinamanuel. And I would say that worked out as well. No longer there, but had a fabulous eight years there, really enjoyed it. And obviously, Quinemanuel has gone from strength to strength since then.

Law As A Force For Good

Anna 2:17

Absolutely, and so has Hausfeld as well. So, as I mentioned at the beginning, our topic today is about litigation for the greater good. And I suppose the starting point there really is what does law as a force for good mean to you?

Lucy 2:32

I mean, I I wanted to start at actually a really high level because I think lawyers get a bad rap often. You know, we can go back to sort of Shakespeare saying, you know, let's first let's kill all the lawyers. Um but that but actually that you know the law is tremendously important. And I think when you talk about law for a force for good, you immediately think about maybe pro bono or or climate activism, but actually I think it's far more fundamental than that. And you look at the you know, the rule of law, which is really just a sort of fancy way of saying that we settle our disputes by you know through the law and not through violence or through the might of the strongest always wins. And look, there were times in this country when that wasn't the case, and there are times in the world in other places where that still isn't the case. Uh, and it's uh it's just really fundamental to the functioning of our economy uh that we have a very, very strong legal system supported by excellent judges, excellent lawyers, uh, and other service providers, uh, like insurers and funders, and the whole ecosystem works together to mean that we can settle our disputes um, you know, without resort to violence. So, in that sense, everything that all lawyers do is a force for good.

Simon 3:45

I couldn't agree more, Lucy. Um, I I think sort of looking thinking about litigation and dispute specifically, one of the things I think is really interesting on this topic is the role that private sector plays through litigation and enforcing rights. Um, obviously, uh regulators and governments and lawmakers have their role um in terms of setting rules and the rule of law, but litigation and disputes resolution is actually at the coal face. Um, and it's about checking power, holding power to account. And often, uh, particularly in a capitalist society, you'll end up with concentrations of power if they're not checked. And what litigation does is it enables the private sector, uh, litigants lawyers supported by um other other parties to hold that power to account and ultimately to resist concentration of power. So I think it's a really, really important tool in the force for good.

Claims That Create Wider Change

Anna 4:34

It's really fascinating, and I really like, you know, Lucy, you touched on the geopolitical aspect of all of this, actually, and how you know law as a force for good has brought us here certainty and the importance of that to economic stability, um, which is absolutely essential. And and Simon, I think it's really fascinating when you think about how law can be used as a tool by the private sector to also help achieve those goals and economic stability is clearly a hot topic, is always a hot topic, but I feel like at the moment it's a particularly hot topic when we are seeing disruption as well to economies all around the world. So, leading on from that, what types of claims has Hausfeld been involved with which support the greater good?

Lucy 5:18

Well, I mean, one of the aspects that obviously the the private sector is incredibly important. We all you also think about law as a force for good in terms of you know legal activism. We wouldn't have gay marriage without without the law, uh, I'm you know, the desegregation of schools in the states, for example, these all came through about through through lawyers. And and at Hausfeld we do quite a lot of cases of that ilk, um particularly in climate activism. So, for example, we represented over a thousand villagers uh living in the copper belt in Zambia who had suffered damage as a result of uh pollution by uh by a copper mine. Those are sort of some examples of the work that we're doing uh on the slightly more activism end of the scale. We also actually do a lot of pro bono work supporting people who wouldn't otherwise be able to afford legal services. But I think Simon's going to talk a bit more about some of the sort of more commercial cases that we do, which we would still say are of force for good.

Simon 6:17

Yeah, I think I think that's that's one of the key points to me, really, in that there's a lot of litigation that it's very easy to kind of characterize as being part of the greater good, whether it's about climate or human rights or or social or political issues. But actually, I think there's a you know the huge chunk of standard litigation, consumer litigation or or competition claims, uh, which um are all about of being a force for the greater good, but uh but but uh don't uh as easily fall into that kind of category sort of superficially. And these are cases that we that we that we work on currently or that have resolved recently, but I'm I'm thinking of the emissions claims, for example. So those are at their heart, those are claims about climate change. You know, you've got car manufacturers who allegedly are are are installing defeat devices to sort of continue the use of heavy emitting um diesel engines, and consumers were misled about that, and ultimately that case is about getting money back to consumers who overpaid for something. But it has that kind of greater good feel where it's not just about the money, it's about sort of moving uh society along with it. Another case, I think, which falls into this bucket is um the Kent and Apple case. So this was a uh collective action in the Competition Appeal Tribunal. It was about an abuse of dominance by Apple, which essentially enabled it to charge very high prices uh inside the App Store. Um and that's just uh completed a trial, uh, a judgment's been given by the Competition Appeal Tribunal. And ultimately the the consequence of that conduct was that consumers were paying way more than they should have done for products and services. Um and so it does, it's not so kind of it doesn't have such a campaign-y type feel to it, but it's really important in terms of making sure that the uh power remains checked, um consumers don't get abused and uh don't end up paying too much more than they should for prices. And so it's really important as part of this journey for the greater good. Just a final kind of bucket of claims that I think is really important in this area as well is securities litigation. And this is about claims where issuers of securities essentially mislead the market. Um, and what happens is that institutional investors who take positions in those securities ultimately end up suffering loss. And what I think is really important about this is that those institutional investors often manage money for a much wider segment of society. So you're talking about a really, really important broad uh wrongdoing that affects a lot of people. Uh, and I so I think again, you know, the securities claims fall into that bucket of a kind of societal greater good.

Anna 8:59

I think it's really interesting because often we think about uh litigation in the security space or investor space. It might, you know, there might be a perception that these are all about you know, a fund's got lots of money. It doesn't, it's not really going to have a wider impact if they lost a bit of money on the investment. But actually, what you're talking about is something much, much broader. How the losses can be much wider perhaps than actually seen from the outside.

Simon 9:23

Yeah, exactly. And and you know, you institutional investors take all different shapes and forms. And some are very wealthy funds for the benefit of very wealthy people, but others are pension funds, you know, and you have pension funds everywhere in the world whose money is managed for huge swathes of the population. I think they have as much of an interest in these types of claims as those big funds, like you say, who you know you you might think aren't necessarily for a kind of wider or greater good.

Lucy 9:50

And ultimately it's the pensions that are losing money when you know when the stocks don't perform as they should because of misstatements.

Who Benefits And Why It Matters

Anna 9:57

Is it fair to say that litigation only benefits lawyers or litigation only benefits those funders that are investing in claims? And I have in mind here, I guess, the really big claims where there are private investors that are helping to finance legal fees, and we're going to come on to that a little bit in a bit. Um, but is it fair to say these types of people, those at the back end or the litigators running the claims, are they the only ones that are going to benefit?

Simon 10:23

So I think that this is a fairly common, um commonly expressed side of the debate currently. Uh, there's a lot of uh discussion around the effectiveness of class action processes, um the group litigation that goes on, the emissions case gets a lot of press in relation to this. Ultimately, these claims are advanced on behalf of consumers or a group of organizations, and where those cases are successful, there are enormous benefits to those consumers or groups of organizations. And you can point to results or settlements in the emissions cases as the primary example. Um, you can point to uh the resounding victory in the Kent and Apple case. If you're if anyone wants to say that achieving a one and a half billion pound judgment for a group of consumers is for the benefit of lawyers and whoever, then I I'm not sure how that's a sustainable argument. There is, of course, a discussion to be had about ensuring that litigation remains for the benefit of participants. But I think it's a it's a it's it's not a it's not a sort of helpful starting point to the discussion to say that that that that must be where it is. Um I'll just add that there's a there's quite a powerful lobby uh on these issues, um contributing to the discussion in the media or uh to the political reviews of these issues. Um and that lobby is funded by vested interests. Um and in those circumstances you have to really think about who's saying the things that they're saying and what the ultimate outcome of those things is going to be.

Anna 12:00

Sometimes with these things, it might depend, I suppose, of which side of the table you're sitting on. And putting on the hat of a you know big business who might be on the receiving end for uh these types of claims, which are extremely costly. Um, you know, is this a matter of perspective or putting on the defendant hat and challenging this a little bit, would you say that it's still reasonable, fair enough to say that these types of claims really are for the greater good?

Lucy 12:29

I mean, look, I think obviously it depends a little bit on your perspective, but I mean I would bring it back to the very beginning, what we were saying about the rule of law, um, that even very large defendants should not feel that they can act with impunity um without suffering the consequences of their illegal behaviour, um, which is effectively what you're saying if you're saying you don't want any form of collective redress. Um there is a distinction between not having a law and having laws that can't be enforced, but in practical for practical purposes, there's no distinction. So, you know, I think that that that sort of a high point of the rule of law is important. But in fact, actually, on a very practical level, I'm not sure it's the case that all defendants would don't want these collective redress schemes, don't want funding, don't want insurance. Because actually finding a way for these very, very large and complex cases to be litigated in an efficient manner to achieve finality of outcome actually could very well be in defendants' interest as well. And I think also, and I have heard it said from you know the large defence law firms anyway, that being able to litigate against well-resourced, responsible, um, you know, careful, clever lawyers such as Hausfeld is a real benefit. And that actually having to litigate against people who aren't well organised in this space is is is much more difficult. So I don't think it's it's not as simple as saying, you know, claimants want funding and collective redress and defendants don't. Uh, I don't think that's the case at all.

Simon 14:02

And just to add to that, I think that there's another element which is a slightly less strictly legal concept in terms of the overall objectives of litigation. But a big effect of these cases being brought, if we're if we're weighing in the balance whether or not you know they are for the greater good is the deterrent effect. And it's one big consequence of having litigation procedures that enable these big cases to be brought, is that defendants have to consider that as a potential consequence of carrying out misconduct. Um and you know, the power of that as a as an effect and a force for good is well documented. Um, and the fact that it may be faced as a risk in the in in the course of their everyday business is a really, really important tool. Um, and ultimately that's all for a better functioning market, and so uh you know it has to be accepted as that.

Barriers To Joining Group Claims

Anna 14:53

I wanted to turn a little to um some of the barriers that can arise in this type of group litigation or impact litigation is maybe a nice way to describe this type of greater good claim. Because it strikes me that your everyday person doesn't have the money, doesn't have the knowledge, doesn't have the access even to know what is a good law firm, what is a dodgy law firm. Um, they they simply don't know. So I suppose starting with the corporate clients, what would you say some of the barriers are for corporate clients to join a group claim?

Simon 15:29

Well, I I think I'd start with an answer to that question in the context of securities, because usually, not always, I was going to say usually you have corporate claimants in those cases. Actually, historically, we have seen big retail groups of claimants take part in those claims. I'm thinking of the RBS rights issue litigation. Um but it but but securities, broadly speaking, requires corporate claimants to take part. Actually, what I've noticed of late is is a very significant uptick in a desire to take part. And in fact, more than that, a very careful consideration of whether or not there is a duty to take part if that if there is uh a significant enough evidence that there's a case to pursue. Um that said, obviously all corporate corporations, companies have to be very careful about the decisions they take. Um, and usually their assessment or their calculation about participation will rest on cost, uh, information, um, burden of resource, how how much management time is going to be taken up in pursuing that claim? Um, how long is it going to take? Um, and obviously we have pretty efficient courts in this jurisdiction, but they still take time if the if the matters are complex. Um and they'll also be thinking about public perception, the reputation implications of of participating, um, and what risks are there? Are there financial risks um in actually pursuing those cases? So, as I say, I think that that that's it's quite a complicated calculation as to whether or not to participate. Um, but broadly speaking, we're seeing, I think, a bit of an increase, an uptick in desire to do so.

Anna 17:12

And how much would you would you say of this participation hesitation is psychological versus financial? So are these real obstacles, or is this some type of psychological barrier that is preventing you know the full scope of these claims to be brought?

Simon 17:30

So I think that's a really interesting question, Anna. I think there is there has historically been, I think, a bit of an allergy to litigation generally in in Britain. Uh I think historically, compared with you know the obvious candidate, the US, I think corporations, individuals would be described as litigation shy. Um and I think that that's wrapped up in psychology and in and in culture. Um and so I think there is there's still a legacy of that as being uh uh something of a prohibitor in in participation. But also, you're quite right. I mean, cost is another point. And you know, you have to pay for lawyers to pursue cases, and you have to accept in this jurisdiction, certainly, that if you lose or you're not successful, then you may be at risk of paying the other side's costs. So the financial side is a big, big part of it as well.

Litigation Funding And Equality Of Arms

Anna 18:23

And and flowing from that, I mean, litigation funding is a huge feature of all of this. And uh, you know, uh Lucy, what would you say is the role of funding in these types of claims?

Lucy 18:35

I mean, third-party litigation funding is crucial, certainly for these group claims. It's it's simply not possible to bring them. I mean, there are some mechanisms for sort of crowdfunding, for example, but it doesn't really work, and certainly not on the scale of these very large group actions. Um if if they if it weren't for funding, the claim simply wouldn't be bought. Um and you know, we were talking earlier about, oh, is it just the lawyers who benefit? In the vast majority of cases, um the the the majority of the funds will go to a successful, a successful claimant. Um But the fact of the matter is if there weren't funding, they wouldn't get anything at all because they wouldn't be able to bring the claim. So, I mean, from that point of view, it's really important sort of access to justice point. Um but look, the funders play an additional role. They also really scrutinize the cases at the beginning, they do a lot of due diligence, they can help the lawyers frame the case in the right way. They're obviously not allowed uh to influence how the litigation is run, but they they can provide quite a useful sort of sounding board for the lawyers and just someone else at the table. Um so they they really do sort of play a crucial role, really, in allowing these claims to be to be bought. Um and they also ensure that there's something of an equality of arms, perhaps not entirely, because very deep-pocketed dependents still seem to have access to greater funds than funded parties, but it helps, you know, uh and it ensures that uh that the that these group claims can have really excellent legal representation.

Insurance Innovation Beyond ATE

Anna 20:11

And certainly on the insurance side as well. I mean, we're seeing a really radical thinking with a lot of insurance products, and and the market over the last decade has evolved phenomenally. It's it's fascinating to watch the pace of it, the creativity, and really the efforts that have gone into developing products that can help to protect against risk. Um, so in the insurance space, a lot of what we're seeing is insurance helping to support funders. So it might be that the funder is uh loves a claim, but they have you know only so much threshold for risk, and there's going to be sensitivity. And so insurance combined with the funding can be a way really crit uh really creatively to help to bring down that risk, and then it can bring down the cost. So it's it's it's we what we're really seeing some disruption where insurance can move into the space and work with funders, and also actually law firms as well, um, where law firms are increasingly recognizing there's huge potential, um a strong need to improve access to justice and firms recognizing we can really help with this by taking on a lot more risk ourselves. But of course, um too much risk is not a good thing for business. And so that's when insurance can step in and complement. Um, so it it's it's fascinating to see how the funding and the and the insurance markets are really coming together to support these types of claims, which hopefully really are beneficial to consumers, investors, and all of those parties that have a stake in having a good outcome.

Lucy 21:52

Um I think we're seeing a real shift in the way that insurance is used as well. Obviously, we are very, very familiar with adverse cost insurance. ATE insurance, and that that that product is, you know, we have it for all of these claims. But new, well, maybe you'll say they aren't so new, but I see them as relatively new products with own side cost insurance, for example, are coming onto the market providing really interesting solutions, particularly in the slightly smaller cases. So we've been talking primarily about group claims today, but actually we do a lot of uh just you know standard commercial disputes between two parties, or two or three. Um, and particularly when they're on the smaller side, it's actually quite difficult to get those funded because of the sort of metrics involved in funding. But sometimes insurance can provide a solution there. Um so, in that sense, I think the insurance markets are really providing a sort of access to justice in a way that even funding isn't.

Anna 22:49

Absolutely. And then law firms play a really critical role in this because, in addition to, of course, identifying is there a cause of action, how strong are the merits of the case, all of those issues which are fundamental. Um, law firms are also having to think about the economics of the case. Is it going to be workable? And where something looks difficult, because you might have a defendant that's going to fight with every single penny, and you might be going to the Supreme Court eventually, and you'll have claimants which don't have the access to the funds, or they might have liquidity, but they're really not comfortable with putting it all on the line. And this is where law firms can step in, and obviously, howden we have ongoing discussions with firms all the time about this, but really to say to the client, you know, there's a way through this. It might be you're worried about losing your capital because you're going to have to drop a vast amount into legal fees. We can ensure that. Or please don't be so concerned, investor group, because actually we can put in place ATE insurance, which is going to protect your adverse cost exposure. So there's a whole whole sort of range of things that can work creatively. And I guess Simon, it kind of comes back to the point where where we're talking about real barriers versus psychological barriers. And hopefully, ideally, it takes a lot of education though, um, to get the message out. But there is a way often past the psychological barrier to find a solution.

Simon 24:13

Yeah, I think that's right. And I think you've touched on two things there, which I think are really important here. And the first is what's the actual cost here? And I think the main thing that we we are seeing with the addition of all of these creative ways of insurance stepping up, being used in different ways, is you get a better price. And that's obviously in the benefit of the claimants, and that's what claimants are really interested in. Can I get a better price here for ultimately um offloading some of my risk or paying for the right advice and so on? And the the second point is um actually offloading risk is part of the conversation. Maybe I want to pursue this, but I can't justify having the risk of the pursuit of it on my balance sheet. And again, that's a you know, insurance is a really big component of relieving that risk. All of these things are pointing towards satisfying what the claimants need. And the claimants' needs aren't just about uh how strong is the case, how long is it going to take, how much am I going to get at the end of it. It's also about what are the logistics behind and the practicalities behind actually pursuing it. And I think it's it's really interesting to see the market mature in this way and essentially provide all these different options.

Lucy 25:23

Yeah, another aspect I think is is potentially uh accessing different sources of capital. So obviously, we've gone to third-party funders to try and fund the cases, but but once you bring insurance into the picture, the potential is there to then go and access other sources of capital, uh, knowing that the risks are insured and that you have you have an absolute return. You know what your return is going to be, either if you win or if you lose. Um, and that that potentially does open up um other other sources of capital, potentially even just more traditional lending on the basis of an interest rate, as opposed to funding where you're getting, you know, you have to pay 3x return or whatever it is.

Anna 26:01

I mean, that really resonates with what we're seeing in the market. Uh a real move towards, I mean, the traditional litigation funding, it's there. It's become fundamental to many, many claims in the UK, and it's a really big part now of the legal infrastructure. Um, but we are seeing disruptors, we're seeing new sources of capital. Money moves around, so sometimes it might slow down in one place, but you find it tends to pop up somewhere else. We're seeing a lot of international uh flow of money as well. Um, and on its own, sometimes this type of financing might be challenging to access or it might be expensive. Um, but when it's handled carefully, and we have quite a lot of these types of um sources of capital approaching us at Howden, um, when it's coupled with insurance as well, we can bring down that cost. And direct lending with an interest rate, um, Lucy, is a really interesting model, um, which is becoming more of a feature. I think looking ahead, it may be we see a lot more of different structures. So moving away from third-party funding where you have the multiple approach. I say moving away, it's not going anywhere. But no, as one option, but more options and perhaps different ways to finance claims.

Lucy 27:24

Yeah, and look to our friends in funding, they they they always have a role to play, and particularly in the larger cases, where really you know the only the only source of these very you know high figures is is still realistically going to be the funders. But I do think in the smaller cases where where funding has always found it tricky, you know, it's been a really difficult nut to crack of how do you fund those slightly smaller cases. Um, so I think that's where these new and innovative solutions may come in.

New Capital And Smarter Fee Structures

Anna 27:54

So we've talked a little bit about the economic trends that are directing the market for litigation and funding. I guess I'm sort of interested in anything else you might have seen in the area, particularly what law firms are doing to help sort of open up the field of options for clients.

Simon 28:09

Yeah, I mean, I think part of the the big change is is a bit of a reflection of what's going on in in the funding sector and the funding insurance sort of sector, what pools of capital are available, how can we access insurance capital to support other forms of capital? What that is enabling the lawyers to do is to look at better or from a claimant's perspective, better types of fee arrangement. Um, and I have in mind, in particular, damages-based agreements. So these are uh agreements between the solicitor and their client where you can charge a percentage of uh the amount of compensation uh obtained as your fee. Um and what that can be very carefully calibrated to reflect risk, but what it means is when you get to the end of a case and you have an outcome, there's a managed expectation as to what all the parties are going to get. And clients will have a known understanding of what they can expect to receive, irrespective of whether they end up on the settlement spectrum. And that's really, really attractive to clients because there's certainty there, and and I think it's a reflection, as they say, of a maturing uh uh funding and insurance market that enables us to look more carefully at those kinds of agreements. Um, you've also got um other stakeholders, uh, the council in particular, increasing um desire on the part of council to take risk in cases and to support them. Um, and that's an extremely helpful way of giving um claimants access to um the right kind of advice um for the duration of a case um to a successful outcome. So yeah, I think I think it's it's these are the sort of natural responses that the legal teams are having. We we're we're a bit confined because we have to operate within the regulations that we have. And so that constrains us to a certain extent on on things like fee arrangements. But it is changing, and I think to the most importantly for the benefit of claimants, it means that they have more choice.

Anna 30:10

And what I find exciting about this area is we are having a lot of conversations with law firms now, and actually barristers and chambers as well, about how they can be more flexible with WIP, how much more WIP they can extend for clients, how much do they invest of their own resource into developing claims? Um, and then even once the claim is is off and running, you know, if if the firm backs it, often they are willing to take DBAs or CFAs, and then we wrap it with insurance to provide that comfort, basically. Law firms need stability, it's essential. Um, so the insurance can fit into that space with whip protection, capital protection for investors and also for council.

Simon 30:53

And I think that that that that's a bit there's a it's a sort of a bit of a trope, but skin in the game. I think it's a really it speaks volumes to a multi-stakeholder piece of litigation. If you've got funders, insurers, barristers, solicitors, and the legal team is willing to say, you know, we're willing to put a put in here on risk, it speaks volumes to their confidence in the case and ultimately collegiality as to as to moving it forwards.

Lucy 31:17

And look, I think hopefully we're moving in the right direction in terms of support coming from the government as well. We had the CJC review that is looking um at um you know the the regulation for DBAs and CFAs. I think it's fair to say that the DBA regs um have uh are not particularly well drafted. I think that's sort of universally acknowledged now and have made it slightly more difficult for people to take a lot of risk on the basis of a DBA. Um, but the CJC review suggested that they ought to be uh amended, um, and so that it it feels that everything's going to come together to allow lawyers and all the other stakeholders to take more risk and to assist claimants to bring these claims.

Anna 31:59

So, what do you see is the biggest growth in litigation for the greater good if we're looking ahead to the next five years?

Lucy 32:06

Well, I certainly hope that we will continue to do all of the cases I outlined at the beginning in terms of climate activism and activism in other areas, those are really, really important to the DNA of Hausfeld and they're they're not going anywhere. Um and then look, in terms of collective redress in the private sphere, um, again, I think it's it's really important that we continue to support these claims and that we continue to do them. I think we would be assisted by um, as dull as it may sound, but different procedural mechanisms in the courts. Um at the moment, we obviously have uh a class action, what might be considered a class action regime, a representative regime, only in the Competition Appeals Tribunal and only for cases in uh in the competition sphere. Um really that ought to be expanded. I mean, uh, securities is the obvious next step. Um, but any kind of group action, there would there ought to be better ways of managing it. The cases become quite cumbersome in some senses. The courts are doing their level best uh to try and ensure that GLOs run smoothly and that there are there are case management solutions for bringing these kinds of claims. And it works. We are bringing them and and people are receiving the redress they they deserve. Um, but it could it could be smoother. Um it might not come tomorrow, but but I would very much like to see in the next five to ten years a change in the legislation to allow for different procedural mechanisms for collective redress.

Simon 33:36

I think and I think tapping into something you said earlier on, Lucy, about defendants being interested in that as well, I think ultimately that must be right because these cases are happening anyway, um, and ultimately, if you've got a a procedural mechanism that works properly, efficiently, fairly for the disposal of those cases, that's going to be for the benefit of the defendants as well, because they're going to be able to run them in a more efficient way without having to worry about spiralling costs and and and so on. So I think it's uh there's a holistic interest in all of that. And I totally agree with what you said. I mean, if we can have that in the next five years, I think it will be to the benefit of everyone. Um I was going to I'm if it's if you'll permit me, I'm going to say something really typical and boring right now, but I think AI is going to play a big part in litigation in the next five years.

Anna 34:23

Not boring at all. Not boring at all.

Simon 34:25

And predictable, but but and and and I think in in particular in relation to securities, uh and I think I have in mind really two particular ways in which it's going to affect. And the first is that securities litigation is ultimately about what issuers say to the market about their prospects or their profitability or whatever it might be. And increasingly the way that that information is compiled is through large language models. And so you're going to see that the ultimate responsibility for statements put out to the market may rest in part on how those large language models have distilled, synthesized, summarized information. So on the on the on the sort of liability side, I can see that happening. Similarly, on the investor side, increasingly you've got institutional investors using AI and large language models and algorithms to carry out their trading. And uh I think even in substance that's going to again play a big part in in how those cases um unfold. I don't know whether that will be in the next five years. I suspect that's going to happen in the next five years. The litigation about that may come shortly afterwards.

Key Takeaways

Anna 35:35

It's really, really interesting. And you know, just to wrap up, I mean, I've thoroughly enjoyed our discussion about how litigation can have a positive side to it and actually have a wider benefit, not just benefiting one person in the dispute, the winner, but actually benefiting a class of investors, those who have stakes in pensions, those who are consumers, or just really anybody, even those who might be suffering some type of environmental harm. So the scope for these claims is very, very big. From what I've heard today, the scope could grow. There's quite a lot more to come in this space. Um, and of course, very interesting to hear how insurance and litigation funding continue to adapt and support these types of claims. So thank you so much for joining me. Thank you very much. Thank you, uh Lucy and Simon for joining us. And thank you to all of our listeners who have joined this podcast. And certainly, if you have any questions at all about litigation funding and insurance, how they might be able to unlock obstacles that you are facing in your claims, whether for the greater good or otherwise, please do get in touch.

Speaker 2 36:42

Thank you for listening to this episode of Fortune Favours the Brave from Howden. To hear more episodes and subscribe to our channel, search Fortune Favours the Brave on your favorite podcast app.