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Most multi-million dollar projects start with a discussion around finance. How will specific project finance be raised? Will a new structure be agreed with existing lenders? Will state or private capital be available to invest? For projects from infrastructure to R&D, finance is high on the agenda.

 

Project financing

Consider an R&D project to develop a new product. US$8m is required over three years to bring the product to market. It is a relatively high-risk project – with around a 60% chance of success. The company anticipates projected revenues of around US$100m if the R&D is successful but given the nature of the product, it will not be easy to predict for some time the outcome of the investment.

This scenario is not uncommon. Companies will usually consider financing options for this project rather than allocating US$8m from the balance sheet. There are investors and lenders with specialisms in financing R&D projects who can assess the risks and rewards.

A claim arises

Consider another scenario. A supplier has failed to honour a supply contract, which has impacted the ability of the company to service clients – two key clients have threatened to sue and take their business elsewhere. The GC wants to sue the supplier and has been advised that the claim could be worth up to US$100m, with 60% prospects of success. External counsel have also said – following a brief phone call – that their fees will be around US$8m to run the claim.

This conversation usually ends one of two ways:

  • The CFO explains that there is no room in the budget to spend US$8m on legal fees and instead steps should be taken to limit the damage, try to keep the clients and move on; or
  • The CFO agrees that the claim is too important to give up and approves the budget of US$8m, taking US$8m out of the R&D budget and postponing the opening of a new office in a target market to find room.

Neither option is ideal.

The third way

The third option remains the least common but most advantageous. The company can apply for disputes funding for the costs of the claim allowing them to pursue the US$100m claim without using cash from the balance sheet. Disputes funding is non-recourse so is only repaid along with a success fee in the event the claim succeeds. If the claim loses, the company pays nothing. By this approach:

  • The CFO keeps US$8m allocated for recruitment and growth;
  • The company pursues the valuable claim;
  • Funding is repaid only in the event of success – no debt is recorded on the balance sheet.

This option is becoming more popular but is not yet as mainstream as its rationale suggests it should be. The CFO will always look to finance options for a multi-million dollar project, why not a multi-million dollar dispute?

If you are interested in ‘the third way’, please contact Sean or any member of our litigation funding team.

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