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Commercial Contract Disputes

At TheJudge, we regularly receive instructions to secure terms for breach of contract cases from a range of clients, from SMEs to blue chip companies. Our work spans all industry sectors and, in many occasions, has a cross-border element. Whether the breach of contract has a value below £20,000 or in excess of £200m, we have the breadth of expertise and skill to obtain the necessary Litigation insurance and/or Third Party Funding which is both competitive and bespoke to the needs of the client.

We recognise the importance of the client’s case to the value of their business and therefore always seek to hedge off as much of the cost and uncertainty as possible. Because we are engaged by the client, and are therefore are not acting as an agent for ATE insurers or Third Party Funders, our duty is to source competitive litigation insurance and/or litigation funding with a view to providing maximum protection of the client’s downside cost risk, whilst simultaneously ensuring that they maximise their upside in a successful outcome.

There is no limit on the size of the case that is suitable for insurance and/or funding. Whether the client requires £20,000 of legal cost protection, or over £20m, we have access to all the leading litigation insurance and Third Party Funding markets. Furthermore, it is highly likely that regardless of the size of the indemnity, any ATE Insurance premium will be deferred and contingent upon success. This means the client has no premium to pay upfront or no premium to pay at all if the case is unsuccessful. If the case is successful and is subject to English law, the premium should also be recoverable from the opponent under the “loser pays” costs principle. Accordingly, in most instances the premium should not to cost the client anything, win or lose.

If you have a specific case that you would like to discuss, please contact us.

Q and A

How does the ATE Premium Work?

Although ATE premiums vary significantly, there are certain common features:

The premiums brokered through TheJudge are generally deferred and contingent upon success, meaning that the premium is only payable if and when the dispute is resolved in the client’s favour.
TheJudge is typically able to negotiate premiums which increase the closer the case gets to Trial or which are discounted significantly if the case settles early.
For litigation pursued in England and Wales, the ATE premium is a recoverable cost under s.29 Access to Justice Act 1999, subject to a test of reasonableness.

Is ATE only relevant to financially distressed litigants?

ATE is relevant to any party involved in or contemplating litigation. Whilst it can be used to level the playing fields between unevenly matched opponents, many of the world’s largest companies also regularly use ATE to hedge their legal cost exposure and bring increased certainty to the legal spend, especially at a time when legal budgets are under pressure.

Does the instructed solicitor need to act on a CFA in order to secure insurance for the client?

There is no requirement to act on a conditional/contingency fee basis.

What is the role of TheJudge?

As an independent broker, it is our role to work for the client in sourcing and negotiating suitable insurance. To do this, we identify and approach a number of potentially suitable markets. Our aim is to obtain several offers where possible, which is important to increase the chances of securing terms, whilst ensuring that any premium incurred is competitive.

For cases being litigated in England & Wales, our market search is vital to provide evidence of market comparables, should the reasonableness of the premium be challenged by the opponent at a costs assessment. We are market leaders in providing premium recoverability support and have had our evidence accepted at numerous costs assessments, including SCCO hearings.