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One of the most common questions our Investment Managers are asked is – what should be provided to support a request for funding?
While it is impossible to lay down hard and fast rules of what will be required in every case brought to IMF Bentham (IMF) for funding, there are some categories that will assist in getting a positive decision on funding.
The better prepared and organised an application is, the quicker we can assess the case and make a decision.
The claim
The first thing our Investment Manager will need to understand is how the claim arises and why the claimant is entitled to the remedy sought.
If the claim is to be brought in an unusual jurisdiction (for example, an arbitration not supervised by a major arbitral institution), some explanation of how the jurisdiction operates should be provided.
If proceedings have already been commenced, a full set of the filed pleadings should be provided. If the claim is in its infancy, a draft statement of claim or other succinct statement which provides an explanation of the claim would be very helpful.
One aspect that will be looked at closely is the amount claimed. This is because IMF has investment criteria which stipulate minimum claim sizes, which is typically $1 million or more.
To the extent that work has been done to show how the amount has been arrived at, that information should be provided.
While counsel’s opinion on the prospects of the claim is not a strict requirement, it can be useful if one has been obtained. An opinion often assists in the assessment of the case, particularly if the case is about highly "technical" areas of the law.
How the claim will be proved
Any documents which are relevant to how the claim will be proved should be provided. Documents and any other proposed evidence should be sufficient to demonstrate that each element of a claim is highly likely to succeed.
If documents exist which do not support the claim, these should be provided. However, you may wish to include an explanation which sets out why these documents should not be preferred to other documents which support the claim.
Experience tells us that documentary evidence is far more reliable than oral evidence. Claims which are wholly reliant on oral evidence are less likely to be funded than cases which have clear documentary support.
To the extent that proving a particular element of the claim will require evidence from an expert, a report does not necessarily need to be provided as part of the application for funding. However, some indication of how that aspect of the claim will be proved (including the identity of possible experts and why the expert evidence is likely to support the position) should be given.
If the defendant’s response to the claim is known or suspected, any documents which set this out would assist us greatly.
Information about the defendant
One of the key criteria that IMF applies when it considers an application for funding is the ability of the defendant to meet any judgement obtained. We see a lot of cases where the claim is very strong but there is very little evidence that a defendant would be able to pay when a judgement is obtained.
To the extent that documents show the financial position of the defendant, or suggest that a defendant may have means of paying a judgement which are not evident from financial statements, these should be included (with an explanation if the documents are not clear on their face).
The more information you can provide which enables IMF to make a positive assessment of the defendant’s financial position, the better chance there is that a case which is highly likely to succeed will be approved for funding.
What next?
Once an application for funding is made, it is rare that you will not hear from your Investment Manager again before a decision is made on funding.
Your Investment Manager is likely to ask you for further documents or seek clarification of particular points while doing an assessment of the application. During that process, the case will be thoroughly tested and you will have an opportunity to discuss any issues identified before a decision on funding is made.
While it is impossible to lay down hard and fast rules of what will be required in every case brought to IMF Bentham (IMF) for funding, there are some categories that will assist in getting a positive decision on funding.
The better prepared and organised an application is, the quicker we can assess the case and make a decision.
The claim
The first thing our Investment Manager will need to understand is how the claim arises and why the claimant is entitled to the remedy sought.
If the claim is to be brought in an unusual jurisdiction (for example, an arbitration not supervised by a major arbitral institution), some explanation of how the jurisdiction operates should be provided.
If proceedings have already been commenced, a full set of the filed pleadings should be provided. If the claim is in its infancy, a draft statement of claim or other succinct statement which provides an explanation of the claim would be very helpful.
One aspect that will be looked at closely is the amount claimed. This is because IMF has investment criteria which stipulate minimum claim sizes, which is typically $1 million or more.
To the extent that work has been done to show how the amount has been arrived at, that information should be provided.
While counsel’s opinion on the prospects of the claim is not a strict requirement, it can be useful if one has been obtained. An opinion often assists in the assessment of the case, particularly if the case is about highly "technical" areas of the law.
How the claim will be proved
Any documents which are relevant to how the claim will be proved should be provided. Documents and any other proposed evidence should be sufficient to demonstrate that each element of a claim is highly likely to succeed.
If documents exist which do not support the claim, these should be provided. However, you may wish to include an explanation which sets out why these documents should not be preferred to other documents which support the claim.
Experience tells us that documentary evidence is far more reliable than oral evidence. Claims which are wholly reliant on oral evidence are less likely to be funded than cases which have clear documentary support.
To the extent that proving a particular element of the claim will require evidence from an expert, a report does not necessarily need to be provided as part of the application for funding. However, some indication of how that aspect of the claim will be proved (including the identity of possible experts and why the expert evidence is likely to support the position) should be given.
If the defendant’s response to the claim is known or suspected, any documents which set this out would assist us greatly.
Information about the defendant
One of the key criteria that IMF applies when it considers an application for funding is the ability of the defendant to meet any judgement obtained. We see a lot of cases where the claim is very strong but there is very little evidence that a defendant would be able to pay when a judgement is obtained.
To the extent that documents show the financial position of the defendant, or suggest that a defendant may have means of paying a judgement which are not evident from financial statements, these should be included (with an explanation if the documents are not clear on their face).
The more information you can provide which enables IMF to make a positive assessment of the defendant’s financial position, the better chance there is that a case which is highly likely to succeed will be approved for funding.
What next?
Once an application for funding is made, it is rare that you will not hear from your Investment Manager again before a decision is made on funding.
Your Investment Manager is likely to ask you for further documents or seek clarification of particular points while doing an assessment of the application. During that process, the case will be thoroughly tested and you will have an opportunity to discuss any issues identified before a decision on funding is made.