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Litigation Insurance

Litigation Finance

Litigation Funding vs Litigation Insurance

Two different instruments, frequently confused, often combined.

Published · Updated

2 min read

On this page2 min read
  1. In brief
  2. Background
  3. How it works in practice
  4. Worked example
  5. What underwriters look for
  6. Jurisdiction notes
  7. Side-by-side comparison
  8. When funding is the answer
  9. When insurance is the answer
  10. When both are used
  11. Related questions
  12. Litigation funding vs litigation insurance
  13. Frequently asked

The short answer

Litigation funding pays the costs of a case in exchange for a share of any recovery; litigation insurance caps a defined downside in exchange for a premium. Funding solves a cash problem, insurance solves a risk problem, and the two are often used together.

In brief

  • Funding pays costs as they are incurred; insurance pays only if a defined loss occurs.
  • Funders take a share of the upside; insurers take a premium.
  • Funders frequently require ATE for adverse costs.
  • Which to use depends on liquidity, appetite for risk and the forum.
The shape of the outcome
Self-funded With insurance With funding

Illustrative. A teaching shape, not pricing. Funding pays for the case and takes a share of the upside; insurance caps the downside for a premium. Many matters use both.

Background

Both markets grew over the past two decades and now frequently work together in commercial disputes.

How it works in practice

A typical funded case pairs a funder's commitment for own costs with ATE for adverse costs.

Worked example

Specimen · worked exampleIllustrative only

A funder pays £3m of costs for a share of recoveries; the claimant insures £2m of adverse costs.

Figures are invented to show the mechanics. They describe no real client, matter or outcome.

What underwriters look for

Both funders and insurers look for strong merits, proportionate budgets and recoverability.

Jurisdiction notes

Funding rules differ by forum; some restrict third-party funding of litigation while allowing it in arbitration.

Side-by-side comparison

Funding pays costs as they arise and takes a share of the upside.

Insurance pays nothing unless a defined loss occurs, and caps the downside for a premium. Funding solves a cash problem; insurance solves a risk problem.

When funding is the answer

When the claimant cannot, or does not want to, pay its own legal costs as the case runs.

When insurance is the answer

When the claimant can pay its own costs but wants protection against adverse costs, security, judgment reversal or capital loss.

When both are used

When costs need funding and adverse costs need to be capped — a common structure in commercial claims in loser-pays forums.

What does each cost?

How are they sequenced? See the related guides below.

Litigation funding vs litigation insurance

Litigation fundingLitigation insurance
What it solvesPaying for the case as it runsThe cost of losing
Pays outLegal costs as they are incurredOnly if a defined loss occurs
Cost to youA share of any recoveryA premium, often only on success
If you loseUsually nothing owed (non-recourse)The policy pays up to its limit
Often combined?Yes — funders frequently require ATEYes — alongside funding or self-funding

Frequently asked

Can I use litigation funding and insurance together?

Yes, and it is common: funding pays the costs of running the case, and ATE covers the other side's costs if it fails.

Which is cheaper, funding or insurance?

It depends on the outcome. Funding costs a share of the recovery if you win; insurance costs a premium, often payable only on success. Compare what you would keep in each scenario.

What does a litigation funder take if I win?

Usually a multiple of the capital it deployed, a percentage of the recovery, or the greater of the two, as set out in the funding agreement.

Does litigation insurance pay my lawyers as the case runs?

No. Insurance pays only if a defined loss occurs, such as an adverse costs order. Paying lawyers as the case runs is what funding or your own budget does.

Do funders require insurance?

Often, in loser-pays forums: funders commonly require the claimant to hold ATE so that neither is left with an unpaid adverse costs order.

General information only. This page is not legal, financial, investment or insurance advice. Any insurance is subject to underwriting and to the terms of the policy wording issued.

Keep reading

Understand the exposure.

Technical analysis of litigation risk, how cover is underwritten and what drives cost — written for general counsel, funders, law firms and investors.

General information only. It is not advice and not an offer of insurance.