Cat MacLean: David v Goliath meets online fraud – part three

Cat MacLean: David v Goliath meets online fraud – part three

Cat MacLean

In a five part series for Scottish Financial News this week, BTO partner Cat MacLean tells the story of an epic legal battle with the Clydesdale Bank. She explains the reality of litigating against a huge opponent with bottomless pockets, the cost and funding of litigation and the need to find leverage, to use it to fight, and to keep fighting.

Read part one here and two here.

Part three: Sekers v Clydesdale Bank – seeking reinforcements

To say that securing top up funding was a struggle would be a huge understatement. The process of securing litigation funding is never easy, nor quick to navigate, although many funders will claim otherwise.

A quick “no” from a funder is relatively easy to absorb. Much harder is the protracted “maybe” that often involves many follow up questions and requests for further information and documentation, taking hours of time.

Funders will invariably ask for counsel’s opinion on prospects when considering whether or not to fund. When you are asked for supplementary opinions from counsel, you need to think carefully about who is funding the cost of securing these follow-ups from counsel?

In this case, we applied to many different funders, completed many application forms, followed through many diligence processes, obtained many supplementary views from counsel, and answered numerous follow up questions.

Throughout this time, we had – helpfully – been faced with an apparent lack of enthusiasm on the part of Clydesdale to make progress. This suited us given the struggle we were facing to secure the top up funding we needed. The pandemic also helped slow everything down, and it wasn’t until three years after we had raised proceedings that the case really began moving along the procedural conveyor belt.
 
By the end of 2021 we were heading for proof with deadlines for witness statements, productions, rebuttal statements and joint bundles. We were running out of money, we still had no top up funder and we had no ATE insurance policy to cover us for the cost of losing the case.

Our leverage was slim and Clydesdale knew it. If this was a marathon, we were at around mile 20 and had hit the wall.

To make matters worse, the insurers who had part-funded us up to this point were only paying us 2/3 of our bills. This was creating a steadily growing shortfall on our books and I was coming under huge pressure from management to cease acting and to abandon the case…

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