For Mark King, excelling at litigation funding is rooted in enjoying the best of both worlds – working at an in-house position while drawing on his experience in private practice. The Senior Director of Litigation Funding at Harbour Litigation previously worked at Clyde & Co. in Dubai and Mayer Brown’s London office. King says his firm can help “level the playing field” for claimants in need of resources while staying at the forefront of an innovative wing of the legal industry.
“We can potentially fund any dispute, anywhere in the world where funding is permitted, as long as it meets our investment criteria,” King says. “We are increasingly being asked to look at portfolios of claims, financial facilities for law firms, and monetizing awards, amongst other emerging products.”
Lawdragon: Can you describe for our readers the types of litigation funding services you provide?
Mark King: We fund commercial litigation and arbitration across a wide range of practice areas. We do not fund personal injury, nor divorce claims. We have significant experience with the following types of claims: class actions, including shareholders’ actions; environmental disasters and product liability; competition law; breach of contract; insolvency and fraud-related; torts; international arbitration, including commercial arbitration; breach of statute; IP and patent; and trust claims.
We do not apply hard rules to what we do. We fund a wide range of disputes with damages ranging from £10M to £1B and more. We are interested in and can fund a variety of different models.
LD: How did you first become interested in this type of work?
MK: Prior to joining Harbour in 2015, I had been working as a solicitor in private practice. At that time, litigation funding was still relatively nascent amongst firms and claimants, especially corporates.
My interest first started when I attended a seminar on third party funding in or around 2014. I had not come across the concept before but was interested by the prospect of being able to support claimants as a trusted partner in helping them to win their claims, obtain access to justice and/or reduce their financial risk of pursuing claims.
As a lawyer who had only specialized in litigation in my career, in-house legal positions that recruited solely for this area were few and far between. I saw working at Harbour as a rare opportunity to use my litigation and arbitration expertise outside the boundaries of private practice.
LD: What are some aspects about this work that you find professionally satisfying?
MK: It offers me a unique balance of working in-house and still being in private practice. While I am primarily an asset manager for an investment fund, as the only asset we invest in are claims, it means I need to draw upon my litigation and arbitration expertise in analyzing appropriate assets (claims) for investment, monitoring their performance and returns and continually analyzing their risks through to conclusion or realization.
My role also allows me to see first-hand the impact of the commercial and legal decisions I make and how they affect our business.
One of the benefits of working as a litigation funder is that you continually get exposure to a broad range of disputes in various jurisdictions. However, I find civil frauds and enforcements very interesting largely because they often involve tracing the proceeds of fraud through complex webs designed to hide assets which have to be unpicked. The surrounding stories of the frauds usually always make interesting reading!
LD: Are there any trends you are seeing in litigation funding today?
MK: As a result of Covid-19 we expect an increase in fraud and insolvency cases, a greater number of requests to provide funding to law firms, and a growth in the number of corporates looking to use litigation funding. We expect sectors that are more adversely impacted by the economic downturn, such as retail, leisure, oil and gas to be more likely to choose litigation funding as a way of managing their costs and risk in the claims they need to pursue.
LD: Are you introducing any new products or services?
MK: The type of products our clients are seeking from us are evolving. We are increasingly being asked to look at portfolios of claims, financial facilities for law firms, monetizing awards, and portfolio funding.
The key thing with introducing new product areas is to make them, one, easy to understand, and two, relevant and tailored to each client. Most clients have limited experience of using litigation funding, so need to be guided through the process of getting a case funded. This is even more important with new product areas, where clients may hear of a particular new product and be focused on accessing this product, when actually a different product may better suit their needs – for example, we often are approached about a facility when portfolio funding might better serve the client’s goals.
This is why product understanding and experience are essential to making your clients have the best solution for them. The goal is to deliver a product that aligns their risk mitigation and return to their risk appetite and situation. My prediction is that we will continue to see an expansion in the product range offered by funders to respond to client needs. I do expect to see more corporates seek funding products as the pressure to reduce costs heightens.
LD: Can you tell us please about your career path? What led to your interest in a legal career?
MK: I graduated with a degree in Religious Studies, which is probably not the usual degree for commercial lawyers or asset managers. During the final year of my degree, I was personally involved in an insurance coverage dispute when I dropped a drink over my laptop while finalizing my dissertation. I sued the insurer, but I could not afford legal representation as a student, so I represented myself in the proceedings and at trial. The insurer sent their lawyers to the court and I attended with my father. The judge upheld my claim and I was awarded the damages I claimed.
It was this experience that started my interest in following a career as a lawyer and particularly in litigation, and I then focused on converting into pursuing an academic path to train as a lawyer.
While less so than now, competition for training contracts as a solicitor was still very high and vacancies with the leading law firms in London were strongly sought after. I didn’t have straight As in my education and had to find other ways to stand out to law firms, given most applicants had impeccable grades. I applied to over fifty law firms over the time I was at law school in an attempt to get a training contract.
While at law school, I therefore sought to get as much practical legal experience as I possibly could, giving legal advice in prisons to prisoners on rehabilitation programs and working in a local citizens advice bureau giving pro bono legal advice to disadvantaged members of the community. It was this latter experience where I ended up working closely with a partner of Clyde & Co, a leading international law firm with a strong disputes practice. After working with them for some months, I then applied to the firm and was offered a two-week work experience placement which culminated into an offer to do my training contract with them.
Working at Clyde & Co gave me fantastic exposure to working on complex and high value disputes in England and also internationally, where I spent over 3 years working in the firm’s Middle East office. In 2012, I returned to the UK to join Mayer Brown, continuing my career in litigation and international arbitration with a focus on construction and engineering disputes before joining Harbour in 2015.
LD: Did your religious studies degree end up being relevant to a law career?
MK: While my undergraduate degree in religious studies was not focused on law, it did focus heavily on understanding facts and issues and making cogent arguments in support of a particular idea. These are fundamental skills that litigators frequently rely upon and also working in litigation funding where I am required to present arguments to our investment committee on why a particular case should be funded and in assessing the ongoing performance of cases we fund.
LD: What advice do you have now for current students or young professionals who wish to have a similar type of career?
MK: Harbour receives a lot of applicants seeking to work in litigation funding and a common misconception in applications I see is that private practice lawyers think that you remain being a lawyer when you start working as a funder. A key aspect of working at a funder is accepting that you are primarily an asset manager and need to continually assess the strength and performance of that asset as it develops. This requires far broader skills and analysis than simply assessing whether the legal merits of a claim are good.
LD: How have you seen the industry change over the course of your career?
MK: We are working with an increasing number of claimants who can pay their costs of the claim but would prefer Harbour to assume those costs.
One of the first cases I became involved in when I joined Harbour in 2015 was funding a group of financial institutions that had funds to cover the costs of their claim but wanted to avoid the financial risk of doing so. As such, they partnered with Harbour to fund their claim to enable their investors to bring the claim whilst protecting their investors from the risks of doing so.
There are also more competitors entering the market making it ever more important that claimants are in a position to properly assess which funder is going to be the best partner to work with them and their legal team over the duration of their claim. We often have discussions with claimants and law firms about the importance of assessing the right funder against a number of factors in addition to the commercial terms offered by a funder – for example, their experience and ability to appreciate the risks of the claim, level of involvement in the funded claim, source of funds, how funds are committed, etc.
LD: How would you describe your style or philosophy as a professional service provider?
MK: As has been recognized by senior judges and arbitrators, litigation funding has an important role to play in unlocking access to justice, particularly in cases where an “inequality of arms” exists. Our funding and expertise can help level the playing field, and ensure claimants are not prevented from pursuing meritorious cases simply because of a lack of resources.
We recognize that we cannot fund every case, and so we seek to promote best practice, and to make our industry as transparent and as accessible as possible. We engage with governments and the judiciary around the world in explaining how litigation funding can be used for the benefit of society; we educate lawyers on how litigation funding can be used for the benefit of clients; and we establish standards for the industry through our work with the Association of Litigation Funders of England and Wales, ILFA, and helping to establish similar bodies globally.
We also see ourselves as trusted partners supporting claimants in the claims we fund. One of the comments made about Harbour in its Chambers and Partners ranking (Band 1, UK) was: "They operate at the Rolls-Royce end of the market, funding serious cases with staff who can actually add value in the context of litigation. It's very useful to have a litigation funder who does not back seat drive. They bring very useful and objective solutions."
LD: Do you have any experiences in advising lawyers that taught you new approaches?
MK: As a funder it is essential to ensure that the amount of funding you are providing is sufficient to cover costs through to the conclusion. This is important not just to protect the investment but also to give the claimant certainty.
This relies upon a detailed and thought-through budget from the lawyers running the case. It is disappointing that there are some lawyers who still say to their clients or to us as the funder that it is impossible to give a budget because the path to recovery in the litigation is all too uncertain.
We regularly work with lawyers in educating them on how to properly approach budgeting for a case, the types of considerations and assumptions that need to be made and what contingencies should be factored in. The breadth of our litigation experience on claims of all different types and jurisdictions gives us a sound ability to help give real guidance on what a claim realistically costs. We can therefore support claimants and their lawyers in helping agree to more realistic budgets.
LD: What advice would you give potential clients in terms of how to most productively work with an outside advisor?
MK: We consider ourselves as a key partner in supporting the claimants we fund. While we do not control the claim – the claimant remains in control – claimants and their law firms often find us as a valuable partner who, given our experience, can be a useful “sounding board” in discussing key issues, risks and strategy. We have a common objective with the claimants we fund – to ensure the case has a successful outcome so we encourage claimants to use us in this respect.
LD: What do you do for fun when you’re outside the office?
MK: I have two Labradors that keep me active and busy. Everyone at Harbour will confirm/bemoan how it’s mainly all I talk about outside of work.
LD: Are you involved in any community or public interest activities?
MK: I support Guide Dogs for the Blind and Canine Partners who provide special assistance dogs for those with disabilities. This includes fundraising and participating in sponsored events for them.
LD: Do you have a favorite book or movie about the law?
MK: “Anonymous Lawyer” by Jeremy Blachman. My first supervisor gave it to me for Christmas in my first year working in a law firm. It’s written in the style of a blog by a megalomaniac partner in a leading U.S. law firm and follows his obsession with being the senior partner of the firm and doing whatever ruthless steps he can to get there. It’s one of the few books that has had me laughing out (very) loud regularly on the train into work – gaining a lot of eyebrow raising and nervous looks towards me from other commuters.
LD: If you weren’t in your current job, what would you be doing now?
MK: Probably either working as an in-house lawyer or in private practice or alternatively, a professional dog trainer!