Shepherd and Wedderburn's portfolio financing arrangement with litigation funder Burford Capital is being touted as the first agreement of its kind for a top 100 UK law firm.

The deal will see the Scots firm receive an eight-figure sum from Burford, which it can use to provide alternative fee arrangements to clients, with the funder set to receive a portion of the proceeds from any successful litigation.

Despite the relative scarcity of such arrangements, Shepherd commercial disputes head Guy Harvey expects other major law firms to follow suit. "The market is moving quickly," he says. "We are keen to be in the van and not holding onto the coattails of everyone else."

Multiple people involved in litigation funding told Legal Week that there are already examples of comparable arrangements in the UK market, in particular with US firms, as well as smaller UK practices.

The market is moving quickly. We are keen to be in the van and not holding onto the coattails of everyone else

Burford managing director Craig Arnott (pictured above) acknowledges that similar arrangements exist with US law firms, some of which operate in the UK. Burford, which provides litigation funding for around a dozen firms, recently established a $100m portfolio for what it describes as a "leading law firm not based in the UK". It also provides portfolio funding to corporate clients, such as a $45m arrangement with a FTSE 200 company.

Between 2014 and 2016, Burford's investment through portfolio funding across international law firms and corporates increased by 25%; and in 2016, 88% of the company's investment was through portfolios.

A director at a rival litigation funder says: "We do this type of funding in the UK and the US for funding and insurance. I know for certain that a funder already has a portfolio arrangement in place with a regional firm."

Arnott declined to reveal the level of capital Burford will provide to Shepherd, but says that it has "committed to make ongoing payments to the firm".

A director at a litigation funding company says: "You need enough investment to make it meaningful – it needs to be at least £20m. The intricacy with these arrangements is always whether the funder is taking a percentage of the final sum for the portfolio, or are they being paid a particular return from the successful cases up to a certain cap?"

According to Harvey, the types of case that best suit the portfolio model are competition, insolvency, intellectual property (IP) and arbitration. Because funding for these cases is traditionally one-off, he says, it is expensive for funders and clients, as the financial risk is placed on one claim.

"It is a condition of this portfolio that the cases are done on a damages-based agreement (DBA). The benefit is that you have funds available to spread across claims, removing the big risk of DBAs."

DBAs for litigation work, in which the client agrees to pay their lawyer a percentage of the recovered sum, were permitted in England and Wales in 2013 and only introduced in Scotland – where Shepherd is headquartered – this June.

"As a firm, we have been interested in funding for some time," says Harvey. "We know that there are clients who have not pursued litigation claims because they are concerned about tying up their funds. This removes that inhibitor and allows us to reach those clients."

I can see an uptake in litigation coming from disagreements around these agreements

"With portfolio funding, the risk is shared across cases and therefore reduced. The cost of funding goes down and we can pass that saving on to the client," Harvey explains. "Clients with large IP portfolios, insolvency practitioners, victims of cartels and clients involved in investor state arbitration are groups we are particularly interested in targeting."

Arnott says there are two key drivers for law firms to adopt the portfolio funding model.

"One is pricing – if we are spreading funding over a number of matters, the risk to us of any one failing is less than in a single case," he says. "We have more chance of getting our capital back so we make the pricing better. The second reason is timing. If you do a single case, you have to agree terms and enter a funding agreement and that takes time. A potential client might be shipping a case around firms, so the ability to act quickly is critical."

However, on this point, one litigation partner in a London firm cautions: "One of the issues about funded cases is that very often, the cases that are funded in a hurry are not the best to pursue. The temptation is to use quick money for less well evaluated cases. It is a great concept, but the interesting part will be how successful they are over two or three years.

"The danger is that there is a potential for the firm to be more optimistic about cases than it might otherwise be."

Another disputes partner foresees a potential knock-on impact on the market: "The current restrictions on how cases can be funded are leading to more creative ways for firms and funders to deploy capital.

"However, given the amounts involved, if things start to go wrong and returns are not met, I can see an uptake in litigation coming from disagreements around these agreements."