Funding of insolvency litigation and investigations

When an insolvency office-holder is appointed over an insolvent estate, there is a need to commence litigation and there are no or limited assets in the estate the following matters will need to be carefully considered:

  1. •

    how the costs of their lawyers (both solicitors and counsel) and any disbursements (such as court fees and expert reports) are going to be funded

  2. •

    the likely requirement for security for costs to protect a defendant against the risk of successfully defending the litigation and being unable to recover their fees from the insolvent estate

  3. •

    the payment of any adverse costs orders made against them and/or the insolvent estate if the litigation is unsuccessful

The above risks can be dealt with by a variety of litigation funding tools, including:

  1. •

    conditional fee agreements

  2. •

    damages-based agreements

  3. •

    third party funding

  4. •

    insolvency-specific funding methods

  5. •

    after the event insurance

Conditional fee agreements

A conditional fee agreement (CFA) is an agreement for the provision of litigation services with a solicitor and/or barrister where a percentage of the fees charged are contingent on the outcome...

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