Document 2 - Harbour Litigation Funding

the OFT being charged with fronting such claims as part of its consumer protection role, similar to the
regimes in Denmark and Norway.
Mr. Justice Barling cautioned against some other more specific aspects of the proposals including
introducing a rebuttable presumption of loss in cartel cases and any relaxation of joint and several
liability of cartel members. There was also discussion on the differing limitation periods for civil claims
in Scotland compared to England and Wales.
As regards interdict, Heriot Currie QC thought that the Commercial Court in Scotland has a fairly good
track record in dealing with interim relief, citing the recent unreported Lothian Buses / Edinburgh
Airport case, and that an alternative option to obtain interim relief from the CAT may not have a big
impact.
Graeme Young thought that it would be important for the CAT to be able to grant interim orders in
Scotland. This might help give practitioners more confidence in bringing claims, knowing their case
would be heard by a specialist judge. Beyond this he thought extending the jurisdiction of the CAT
might not lead to many more standalone damages claims, but that the collective opt-out regime was
likely to be much more attractive for the larger follow-on claims. To be effective though there also
needed to be some established system for collective settlements, perhaps something similar to the
Dutch model. This would be in the interests of both claimants and defendants. Graeme cautioned
against a potential confusion of the public enforcement role of the OFT (and the future CMA) and any
role it might be given to encourage or facilitate follow-on claims.
The general sentiment of the panel was that whilst any reform that increases protection of consumers
and SMEs, such reforms should not come at the expense of the already established mechanisms in
place in Scotland. With the Scottish Government considering proposals on collective redress, these
issues will dominate discussions for some time to come.
Stephen O'Dowd and Dr. Till Schreiber gave us an overview of their organisations and their activities
in respect of competition litigation. Stephen outlined the options for clients when considering funding
litigation and the market and different models for litigation funding (which go much further than just
funding competition litigation). Harbour is currently funding at least three competition claims, two
follow-on and one abuse of dominance claim. Harbour does not take full control of the claim. It
charges a % of proceeds, but subject to a floor equal to a multiple of the monies actually spent by
Harbour. The client however pays nothing if the case is unsuccessful. Dr. Till Schreiber outlined the
different model operated by CDC. CDC effectively buys up multiple from a number of victims of a
cartel (SMEs but also large corporates) and bundles them together to pursue them in its own name.
This type of 'book-building' provides interesting opportunities for external investors to fund claims that
might otherwise have been individually too small to pursue.
We then had time for some Q&A, with some interesting contributions from the floor, including some
thoughts on the reasons for the relatively low number of private actions before the Scottish courts
from Catriona Munro of Maclay, Murray & Spens, and some reactions from Lord Hodge, Principal
Commercial Judge at the Court of Session, on the practicalities of dealing with and managing
competition cases in the Scottish courts. The discussion then concluded with drinks at Dundas &
Wilson's offices.
The next SCLF event is on 'Competition Law and the Individual' on 21 November 2012.