Attorney Fee Insurance or Litigation Insurance is a policy taken out by a plaintiff to provide an indemnity for the fees and/or out of pocket costs they incur when pursuing a commercial dispute (litigation or arbitration). If the case is unsuccessful, the insurer reimburses the plaintiff for the insured legal fees and expenses up to the agreed budget. This can help in-house counsel to manage their legal budget and avoid any unexpected surprises.
The premium for Attorney Fee Insurance is often fully contingent upon success, but typically costs less than one third of the return charged by litigation funders, which is a key differential that attorneys need to be aware of when advising their clients on potential litigation finance options. It also means insurers can consider matters where the economics (i.e. the ratio of likely damages to the litigation budget) would not be viable for traditional litigation finance.
While Attorney Fee Insurance can be used in isolation, it can also work alongside a litigation finance arrangement. For example, an insurer might cover the attorney fees in parallel to a litigation finance company funding the out of pocket costs.
If you’re a business that has the ability to self-finance your dispute, but are nevertheless keen to secure greater certainty over your budget and risk exposure, then Attorney Fee Insurance provides a cost-effective solution. We say cost-effective, because the premium payable for Attorney Fee Insurance typically costs less than a third of the cost of Litigation Finance options, which is why many litigation finance companies themselves often insure their risk capital on a similar basis.
At TheJudge, we’re the global leaders in making this specialist form of insurance available directly to you. It is the ideal tool for clients who wish to self-finance their lawyers fees and/or out of pocket costs, and has the potential to fundamentally alter how Canadian corporate enterprises manage their litigation and arbitration budgets going forward.
“Air Canada has its share of significant litigation matters that entail a high expenditure on fees and disbursements. While we have the ability to self-fund, in some circumstances we might prefer to hedge the economic risk of a negative outcome. In these situations we find litigation insurance to be a very cost effective way of hedging our risk.”
– Air Canada
Unlike third party finance companies who will often only consider claims in the tens of millions or above, insurers are keen to have a wider book spread, which means they will consider cases where the legal fees budget are as low as $200,000 through to multi-million dollar budgets.
Litigation insurance premiums can potentially be structured in several different ways, depending upon the scenario, case economics and the client’s preferences.
Many our clients elect to structure their litigation policies on a deferred and contingent upon success basis. A contingent premium means the insurer is only paid if the case is successful. If the case is unsuccessful the insurer receives no premium and is liable to pay a claim.
While applications for insurance are generally made at the outset of the case, it is possible to secure cover at a more advanced stage in the proceedings, and with the potential to retrospectively insure fees and expenses already incurred. This is significant, as even corporate claimants can experience ‘litigation fatigue’ or ‘fee fatigue’, particularly in cases which may have run on longer than originally envisaged or gone over budget.
“A valuable and cost-effective risk management option where external financing is not the client’s foremost motive or concern.”
– Dechert LLP
“An option for corporate enterprises, who traditionally engage their external counsel on a standard fee-paying retainer to hedge their risk. The idea that corporate clients can now insure the fees and expenses they pay their attorneys, and in so doing share the risk with international insurers, is likely to be of real appeal to many GCs. The fact that in many instances the insurers only charge a premium if the case is successful makes the proposition even more compelling.”
“Being able to insure our legal cost exposure gives us significant comfort. TheJudge are knowledgeable and responsive. They delivered a cost-effective solution and guided us throughout the process”.
– KGAL Investment Management
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