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Thought Leaders

Thought Leaders

Ben Moss

Ben Moss

Orchard Global Asset Management LLPFifth Floor, 108 Cannon StreetLondonEnglandEC4N 6EU
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Thought Leader

Thought Leaders - Third-Party Funding 2020

Q&A

WWL Ranking: Thought Leader

WWL says

Ben Moss comes highly recommended for his extensive experience in litigation funding, notably for complex group claims across a range of sectors.

Questions & Answers

Ben is a Litigation Finance Portfolio Advisor at Orchard, having previously cut his teeth at a leading group litigation funder. His experience has centred on landmark group claims of unprecedented size, complexity and novelty. These have spanned multiple sectors within common and civil law jurisdictions, with a specific focus on competition, data and securities claims. He continues to leverage his unique skillset acquired during a highly varied 20 year career across law, finance and strategy.

Describe your career to date.

A random walk traversing law and finance. I started as a solicitor (Linklaters, Pinsent Masons) before a transformative INSEAD MBA, after which I swapped law for a commercial role on Barclays’ trading floor, using derivatives to hedge clients’ FX risk. At Lloyds Bank, I was commercial and strategic lead for a portfolio of financial instrument litigation cases. This alerted me to the funding industry and I duly switched from defendant to claimant side. After an unplanned journey, I have never felt more at home.

What sort of cases do you personally enjoy working on?

All of them – I enjoy the role and industry immensely. At Orchard I have access to a broad, spectrum of claim types and funding solutions (individual claims, group claims, law firm financing etc.). My focus remains tilted towards litigation, with a dash of arbitration thrown into the mix.

I have end-to-end responsibility throughout a claim’s life cycle. For me, this generates a deeper connection with the claim than solely performing a single business development or due diligence function.

What criteria do you look at when deciding which cases to fund?

Strong legal merits, robust claim value, reasonable project budget, friendliness of jurisdiction and ability to enforce are all considered pre-requisite by funders. Understanding all court procedural permutations and undertaking a full scenario analysis on quantum are also imperative.

At Orchard, we focus strongly on party dynamics that favour settlement and are also able to manage a robust level of risk by employing bespoke financial solutions.

To what extent is external regulation of third-party-funding necessary? To what extent might it hinder the process?

Claimants’ interests should always be safeguarded (e.g. ensuring a funder has adequate capital to fund a claim, does not control the case and does not have inappropriate termination rights). However a heavy-handed, bureaucratic approach which fetters the abilities of funders to offer bespoke solutions to meet the needs of particular claims would be counter-productive. There is value in funders remaining flexible and offering creative rather than cookie-cutter solutions. Self-regulation, adherence to codes of conduct and the provision of contractual guarantees may provide the required balance.

In its wider capacity as a global asset manager, Orchard is already regulated by multiple financial authorities.

What are the biggest challenges facing the third-party litigation funding market at present?

The industry fears restrictive, knee-jerk regulatory intervention rolled out across jurisdictions – with eyes currently on the Australian class action landscape. Closer to home, the softening of the Arkin Cap under recent UK case law has meant that a funder’s financial liability may exceed its investment in the case. This increased risk may necessitate correspondingly higher prices to fund domestic claims. Finally, the industry has yet to arrive at an agreed methodology to value a funder’s book of live claims.

Covid-19 will likely be followed by a financial crisis. Will funders that committed to provide funds in an ongoing case still be able to honour their commitments if the financial markets collapse?

The Orchard Group is a leading multibillion dollar global alternative assets manager and advisor, focused on structured credit, specialty lending and opportunistic fixed income investments in addition to litigation finance.

Its litigation funding capital is carefully monitored to ensure liquidity is maintained. There is a robust infrastructure in place for funding and managing positions across all strategies, which ensures that funding under its litigation financing arrangements is efficient. We are fortunate to have a best in breed risk management team.

The risk here may sit with newer entrants to the funding market lacking established track record and/or suitable risk management processes.

What tips would you give to a lawyer or client looking to bring a claim to a funder for consideration?

The “gold standard” is a claim that has already been scoped and budgeted by a lawyer – with a positive legal merits opinion, an expert’s quantum assessment and an estimated claim budget (including all disbursements). An initial meeting with the client is also beneficial – this is a relationship business where the claimant/funder relationship can last for years.

That said, as funders we are skilled in assessing cases with a paucity of information/analysis - we’ll rapidly hone in on the key issues, ask the required exam questions and compile an initial anticipated budget to be able to evaluate the opportunity.

What makes Orchard Global Asset Management stand out from its competitors in the market?

We are nimble, creative, have excellent response times and a healthy risk appetite.

Our highly diverse claims portfolio means that whilst there are key specialisms across team members, we do not limit ourselves to set claim types. Similarly, we are flexible in deal structures and take a finance-forward approach, offering bespoke pricing models based on the needs of the client and the circumstances of the case.

Instead of relying on strict ratios of funding commitment to quantum, Orchard aligns its interests with clients and law firm partners to identify appropriate funding solutions. We’ll make the call quickly and definitively – avoiding the inertia of endless back and forth information requests. We’re mindful of our highly robust investment committee governance process and our case selection methodology reflects this, meaning progress is less likely to stall at investment committee level. Thanks to our performance, our investors are fully bought into the team’s strategy.

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