These Terms of Business set out what you can expect from TheJudge and what we can expect from you when agreeing to handle your application for legal expenses insurance and / or third party litigation funding.
References to “we”, “us”, and “our” are references to TheJudge Limited. References to “you”, “your” and “yours” are references to you and your legal representative. References to “provider” or “providers” are references to both legal expenses insurers and litigation funding companies. References to “litigation” include arbitration and other legal proceedings.
This document supersedes any agreement with us previously in force in relation to this application, with the exception of any Non-Disclosure Agreement or Confidentiality Agreement signed by us. Please contact us immediately if there is anything in these Terms of Business that you do not understand or with which you disagree.
We conduct our business through TheJudge Limited which is a subsidiary of TheJudge Group Holdings Limited. Our Registered Office is Amelia House, Crescent Road, Worthing, BN11 1QR. Our company Registration Number is 03941392. Our FCA Reference Number is 309696. Our OFT License Number is 654732 to carry out credit brokerage. We are a Litigation Funding Broker Member of the Association of Litigation Funders.
We are a broker who will act on your behalf to source litigation funding and/or legal expenses insurance (sometimes referred to as After the Event Insurance or ATE Insurance within these Terms of Business) to finance and/or insure legal expenses incurred in connection with a legal dispute.
We will tell you which providers we will be approaching. In order to proceed in a timely fashion, we may proceed to contact providers immediately upon receipt of these signed Terms of Business and confirm to you the providers which we have approached thereafter. If you require confirmation of the identity of the providers in advance, please inform us by way of the covering correspondence.
If there are any providers that we have not approached with your application, but that you feel should be considered, please let us know as soon as possible.
We will generally seek to simultaneously introduce the proposal to several providers on your behalf. Whilst we may not approach every provider in the market with your application, we will typically consider what we reasonably believe to be a sufficiently large number of products to be representative of the whole market. However, depending on the application and the prospects of obtaining a viable proposal from the market, we may introduce the application to a single provider initially with several others being approached simultaneously thereafter, if an acceptable offer is not presented.
Please note that we may, on occasion, advise you of the need to utilise the services of Miller Insurance Services LLP (‘Miller’) to assist us in aarranging and placing your insurance with particular insurers. Miller is a UK based and FCA regulated insurance intermediary. Miller has a separate Client TOBA which only applies to insurance policies incepted with their assistance. These terms form part of Appendix 1 below and you will be deemed to have also accepted the Miller Client TOBA by accepting these Terms of Business.
In the absence of any specific deadlines or urgency, we would expect to receive initial formal responses from the participating providers within 10 working days of receipt of the application.
Whilst this is our target turnaround time, if the case is particularly complex or requires an unusually high level of capacity, it can take longer for the providers to complete their assessment. If at any stage we believe that the 10 day target is unrealistic, we shall inform you at the earliest opportunity and will provide a more realistic timescale, if possible.
As your chosen intermediary, we may earn income in a number of ways.
a) we may charge an application fee at the outset, in order to process the application (please click here for details);
b) we may earn a commission payment from the selected provider(s); and/or
c) we may earn a commission from time to time on additional fees charged by providers during the application process. The additional fees may give rise to a conflict of interest between you, us and the provider concerned. We will take care to ensure that such conflicts are properly managed so we can continue to act in your best interests.
You have the right to ask about our remuneration as a result of broking insurance and/or funding on your behalf.
You are entitled to approach, whether directly or by another broker/agency, any provider whom we have not approached on your behalf.
Where we have approached providers in relation to your application, you agree to our exclusive instruction in relation to that provider. You will not approach or instruct any other broker/agency to approach the same provider, or approach that provider directly, without our consent unless our instruction has been terminated in accordance with the termination provisions within this agreement.
You will not disclose information about the offers produced by providers we have approached on your behalf to any third parties without our consent. In some cases, such disclosure may constitute a breach of the provider’s own terms and conditions.
During the application process, all material facts must be disclosed. A material fact is one that may influence the acceptance of your proposal, or the terms offered by a provider. If you have any doubt as to whether something constitutes a material fact, you should disclose it.
If you fail to disclose a material fact, it may affect how claims are settled under the insurance policy or may render it invalid and/or breach the litigation funding agreement.
Once an ATE policy and/or litigation funding agreement is in place, there will be an ongoing obligation to report certain events to the providers and/or obtain the providers’ consent prior to undertaking certain steps in the litigation, including but not limited to commencing proceedings or rejecting/making an offer of settlement.
We strongly recommend that you take time to familiarise yourself with the relevant policy/agreement’s reporting requirements.
Please ensure that all reporting is made directly to the provider to avoid delay.
The relationship between you and an insurer is governed by the insurance policy. It is imperative that you read and fully understand the terms and conditions of the insurance policy and accompanying literature.
Claims under ATE insurance policies
Any claim or circumstances which may give rise to a claim should be notified directly to the insurance company without delay. Failing to comply with claims notification procedures may result in the insurer refusing to admit the claim. The policy terms and conditions will describe the claims notification procedures in detail. If you are unsure about any aspect, please contact us immediately.
The relationship between you and a funder is governed by the Litigation Funding Agreement (‘LFA’). It is imperative that you read and fully understand the terms and conditions of the LFA. It is often appropriate for you to receive independent financial and/or legal advice before entering into the LFA.
The LFA may contain obligations on you to provide complete and accurate information to the funder when the LFA is entered into and throughout the course of the LFA. It is important that all statements made on the application form and within the accompanying documentation are full and accurate to the best of your knowledge.
Pre-LFA agreements
Pre-LFA agreements are sometimes executed between clients and funders in advance of signing the final LFA. These are sometimes referred to as Conditional LFAs or Heads of Terms and these may also contain continuous disclosure obligations preceding the execution of the LFA.
(i) After the Event Insurance
TheJudge Limited is authorised and regulated by the Financial Conduct Authority (‘FCA’) to carry out insurance mediation activities. You may check our details with the FCA. Our FCA number is 309696.
TheJudge Limited is regulated and authorised to provide advice on legal expenses insurance products. Where we provide a personal recommendation in relation to your insurance options, we will provide you with a written statement of our understanding of your insurance demands and needs, based upon the information provided before concluding an insurance contract.
If we recommend an insurance policy to you, we will confirm why we believe the proposed cover to be suitable in satisfying your insurance requirements. It is important that you tell us if any of the information contained within such a statement is incorrect.
(ii) Third Party Funding
We are a Litigation Funding Broker Member of the Association of Litigation Funders (‘ALF’).
TheJudge is not regulated to, and is not purporting to, provide financial advice when broking litigation funding. Therefore, we cannot and do not recommend particular funding products. We aim to obtain offers of funding to enable you to make an informed decision on whether to engage with one or more funders when proceeding with litigation or arbitration.
We have a standard license from the Office of Fair Trading (‘OFT’) to carry out credit brokerage in accordance with the Consumer Credit Act 1974.
If we are engaged at any stage to broker an insurance policy in conjunction with our engagement as a litigation funding broker, we will comply with Insurance Conduct of Business Rules promulgated and issued from time to time by the FCA.
Under the Financial Services and Markets Act 2000 and other associated regulations, anyone who carries out insurance mediation activities must either be authorised by the FCA or fall within the scope of an exemption. Insurance mediation activities include (but are not limited to) dealing in, arranging, assisting in the administration and performance of and advising on contracts of insurance.
Therefore, if a solicitor or other legal representative is arranging ATE insurance on your behalf (regardless of whether they are making a formal recommendation regarding a particular policy), the solicitor or legal representative requires FCA approval or an exemption.
There is an exemption for solicitors under Part XX of the Financial Services and Markets Act 2000, provided that certain requirements are met, including that the insurance mediation activities are ‘incidental to the provision of professional services’. In order to qualify for the exemption, the solicitor firm needs to be listed on the FCA’s Exempt Professional Firm register (click here to view register). For more information regarding this, please contact us.
The third party funding market is relatively new and has emerged following case law which has restricted the application of the doctrine of maintenance (and champerty) which had previously prevented funders with no prior connection to the litigation from funding legal costs, without exposing themselves to unlimited adverse costs.
However, the doctrine of maintenance still exists and TheJudge cannot provide any assurance that any particular funding agreement will not contravene the doctrine of maintenance either now or in the future.
This is still a developing area of law and it is possible that test cases will be brought in the future which could affect the legality of any specific litigation funding agreements.
One important factor for the courts to consider when determining whether a funder has breached the doctrine of maintenance is the level of control which the funder exerts over the litigation. It is important that you retain ultimate control of the decisions in the litigation albeit the funder will want to be informed of developments and settlement discussions. The LFA may contain a provision for the funder to withdraw funding if the case does not progress favourably, in order to minimise the funder’s loss.
Wherever we broker an insurance policy, we cannot and do not guarantee the solvency of the insurance company or insurance intermediary, nor do we rate, assess or approve financial security. However, we do try to ensure that all insurers or insurance intermediaries that we approach are recognised as being reputable providers of ATE insurance.
We use both UK and overseas insurers to obtain suitable quotations for our clients. It should be noted that a different legal and regulatory regime may apply to non-UK insurers so your ability to enforce your legal rights or seek compensation may vary.
If you have any concerns about the insurers we are approaching to provide cover, please contact us immediately.
We cannot and do not guarantee the solvency of any third party funder. We do not rate, assess or approve the financial security of any funders albeit the funder may be regulated by the ALF for capital adequacy purposes. ALF’s Code of Conduct requires their members to maintain at all times adequate financial resources to meet their obligations to fund all of the disputes that they have agreed to fund, and in particular maintain their capacity:
(i) to pay all debts when they become due and payable; and
(ii) to cover aggregate funding liabilities under all of the funder’s litigation funding agreements for a minimum period of 36 months.
Please note that we may approach funders who are not members of ALF. If an offer of funding is made, we will inform you as to whether or not that funder is a member or whether they have committed to comply with the Code of Conduct, even if they are not members of ALF.
All information about you provided in support of this application will be treated as private and confidential.
Arranging ATE insurance and/or litigation funding will necessarily involve information being provided to us which is subject to litigation privilege and/or legal professional privilege. We will in turn share this information with the providers which we have selected for inclusion in our active search of the market.
Whilst this information will be shared with participating providers on the expectation that it will remain privileged from disclosure, we cannot guarantee that this will be the case and therefore if you have any concerns regarding this issue, please contact us.
Please note it is possible for the opponent to successfully apply to the court for disclosure of the ATE insurance policy or the litigation funding agreement albeit the courts have demonstrated sensitivity towards ordering disclosure of prejudicial aspects of these documents during live proceedings.
The only personal information about you which we will retain will be that provided by you in the course of seeking insurance and/or funding. Under the Data Protection Act 1998, private customers have the right to see any personal information which we hold in our records. If you have any queries, please do not hesitate to contact us.
This agreement can be terminated by either one of us giving 3 days’ written notice to the other.
If an insurance policy and/or litigation funding arrangement has been executed prior to termination of this agreement, we reserve the right to retain any fees, brokerage or entitlement to fees or brokerage which may become payable following termination. All obligations to pay us brokerage on deferred insurance premiums or contingent third party funding success fees in accordance with the “Our Earnings” section of this document will survive the termination of this agreement.
If an insurance policy and/or litigation funding arrangement has not been executed prior to termination of this agreement, but you later execute an insurance policy and/or litigation funding arrangement with a provider that we have approached on your behalf, we reserve the right to charge a reasonable fee for introductory services which might equate to the full brokerage due had this agreement not been terminated.
We aim to provide the highest level of customer service possible, at all times. That said, if you wish to make a complaint about our services, we do have a formal complaints procedure. In the first instance, you should contact us directly either in writing or by telephone. If you are contacting us in writing, please address your complaint to The Complaints Officer, TheJudge Limited, 15th Floor, 30 St Mary Axe, London, EC3A 8BF or, alternatively, you can call us on +44(0)845 257 6058.
If you make a complaint, we will acknowledge it promptly, explain how we will handle your complaint, explain what you need to do (if anything) and update you as to how your complaint is progressing.
If we cannot resolve your complaint straight away, we will acknowledge its receipt promptly and arrange for a senior representative to investigate the matter and provide you with a response.
If the complaint relates to our role as an insurance intermediary and we are unable to resolve the issue, you may be entitled to refer the matter to the Financial Ombudsman Services (‘FOS’). If you are eligible, we will provide you with details of how to refer to the FOS when we send you our final written response or at 8 weeks after receipt of your complaint (whichever is the earliest).
We will not be liable to you for any direct or indrect losses, damages or costs or expenses incurred or suffered by you as a result of or in connection with any service that we provide to you hereunder unless directly caused by or attributable to our negligence, wilful deceit or fraud (or that of our directors, officers or employees).
Our liability for losses caused by our negligence is hereby limited to £5million. There is no limitation of liability in relation to any losses caused by wilful deceit or fraud (or that of our directors, officers or employees).
These Terms of Business and any dispute or claim arising out of or in connection with the same or the subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Miller Insurance Services LLP – Terms of Business Agreement (‘TOBA’) – Client Money
1.1 Miller Insurance Services LLP (also referred to as “Miller”, “we”, “us”, “our”, “the Partnership” or “the LLP”) is an English limited liability partnership. As such it is a body corporate which has “members”. Our registered address is Dawson House, 5 Jewry Street, London, EC3N 2PJ.
1.2 We are a Lloyd’s broker and are authorised and regulated by the Financial Conduct Authority (FCA) to conduct general insurance activities. This can be verified by checking the Financial Services Register on the FCA’s website or by contacting the FCA by phone on 0800 111 6768. You can contact us by phone on +44(0)20 7488 2345 and find out more about us at www.miller-insurance.com.
2.1 This TOBA and its attached schedule A set out the terms on which Miller handles money on your behalf.
2.2 Please contact us immediately if there is anything in this TOBA that you disagree with or do not understand.
2.3 Although you are not Miller’s direct client in the normal course of conducting insurance business, Miller receives payment of premium directly from you and for the purpose of protecting monies due to or from you only, we will treat you as a client. This will protect your money in accordance with our standard client money procedures.
2.4 References to:
(a) “insurance” and “insurers” includes reinsurance and reinsurers; and
(b) “your” means your clients’ if you are an intermediary and the context so requires.
2.5 From time to time, it may be necessary for us to amend or superseded these terms by new terms. Where this is the case, we shall notify you of the proposed changes and, unless we hear from you to the contrary within 28 days after such notification, the amendments or new terms will come into effect from the end of that period.
3.1 When conducting your business we may have to convert funds to another currency in order to settle amounts due to insurers. If a repayment of funds is due from you or is requested by you after conversion, then any such repayment will be made in the currency to which the funds have been converted. Any shortfall arising from exchange differences remains your liability.
3.2 If you pay a premium in a different currency or to a bank account in a different currency from that requested, we may, at our discretion, either return the funds to you or convert the money to the required currency. In the latter case, the converted funds will be applied against the amount due with any shortfall arising from exchange differences remaining your liability.
4.1 We hold money received from you, or to pay to you, as “client money”, either:
(a) as your agent in a non-statutory trust bank account which, in the unlikely event of our failure, is available to clients ahead of insurers and other creditors; or
(b) as agent of your insurers under agreements with some insurers specifying that premiums and claims monies received by us are held as agent for those insurers. This is termed “risk transfer”.
4.2 We may hold and co-mingle client money as defined at clause 4.1 in the non-statutory trust bank accounts, provided the insurer subordinates its rights in the money to those of our clients. As the trust bank account protects money held on either basis, we will not usually inform you on which basis we hold the money we have received from you or for you.
4.3 We are permitted, in the normal course of business, to use client money held on behalf of one client or insurer to pay another client’s or insurer’s premium or claim. We may not use it to pay ourselves commissions before we receive the premium from our client.
44. Notwithstanding the operation of the trust bank account as described above, we do not:
(a) Fund premium on your behalf to insurers and you agree that we will not be deemed to have been paid premium by you; or
(b) Fund claims to you due from insurers.
You acknowledge that any funded amount, whether arising as a result of a payment by us or a deduction by you from amounts payable to us, is to be refunded to us immediately, and that for the duration of any funding, such funded amounts are not considered to be a gift from us. We reserve the right to charge interest on any such funded items from the date the funding commenced to the date of payment.
4.5 Any interest earned on your money held by us and any investment returns on any segregated designated investments will be retained by us for our own use, rather than paid to you. We may hold separately permitted designated investments with a value at least equivalent to the money that would otherwise have been paid into the non-statutory trust account. If we do so, we are responsible for any resultant shortfall in your money held by us.
4.6 Your money will normally be deposited in client accounts with banks which have been approved by the relevant regulatory authority; in the unlikely event that the bank is not approved, it will still be held in a designated bank account. We may transfer your money to other banks or intermediaries, including those outside the UK, where the legal and regulatory regime will be different. In the event of their failure this money may be treated in a different manner.
4.7 Where you do not wish your money to be passed to a particular bank, intermediary or jurisdiction, you should tell us.
5.1 In addition to handling money due to or from you, we may also act for and owe duties of care to others in which case we will manage any conflict of interest fairly.
6.1 Our complaints procedure is available upon request. All complaints should be addressed to Head of Compliance Miller Insurance Services LLP, Dawson House, 5 Jewry Street, London, EC3N 2PJ.
6.2 If we are unable to settle your complaint with us, you may be entitled to refer it to The Financial Ombudsman Service, South Quay Plaza, 183 Marsh Wall, London, E14 9SR.
6.3 We are also covered by the Financial Services Compensation Scheme (FSCS). You may be entitled to compensation if we cannot meet our obligations. Further information is available from The FSCS, 7th Floor, Lloyds Chambers, 1 Portsoken Street, London, E1 8BN.
7.1 All documentation provided to you, and any discussion with you, will be in English. Unless we have agreed otherwise with you, please ensure that any documentation and/or instructions that you provide to us are always in English.
8.1 This TOBA, any associated letter/correspondence and our business relationship with you are governed by English law and are subject to the exclusive jurisdiction of the High Court in London.
9.1 It is deemed that you consent to working with us based on the terms of this TOBA if, having received this TOBA, you instruct us and/or continue to do business with us.
Terms of Business Agreement – Client Money – Schedule A
Exclusions of Liability of Partners and Employees
1.1 We use the word “partner” to refer to a member of the LLP.
1.2 Any reference herein to an “employee” of the Partnership shall mean a person (other than a partner) who is:
(a) an employee of the Partnership (including without limitation any non-executive directors); or
(b) a consultant of the Partnership retained by us.
2.1 It is the Partnership that handles your money for you, acting through the agency of its partners and employees. The Partnership shall be liable to you (subject to this TOBA) for:
(a) the wrongful acts and omissions of the partners in the course of the business of the Partnership or with the authority of the Partnership; and
(b) the wrongful acts and omissions of its employees in the course of their employment.
2.2 No partner or employee assumes any personal responsibility to you, and accordingly no partner or employee shall owe you any personal duty of care.
2.3 It is agreed and understood that no partner or employee shall be liable to you for any loss of damage howsoever arising as a consequence of the acts or omissions of such partner or employee (including negligent acts or omissions), save where such loss or damage is caused by fraud, dishonesty, reckless disregard of professional obligations or wilful misconduct on the part of such partner or employee. The Partnership itself shall be liable to you to the same extent it would have been in the absence of this exclusion, and the Partnership undertakes not to rely upon any matter by way of defence if and to the extent that such matter would not have been available to it in the absence of this exclusion.
2.4 The terms of this clause 2 shall be enforceable by the partners and employees of the Partnership.
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