FRANCIS Sim has dabbled in several areas of the law during her two-decade career - crime at More & Company, commercial property at Morton Fraser and business development at MacRoberts - but it is her current role as general counsel at Scottish litigation funder Restitution that she finds the most rewarding.
The reason, she says, is simple: having become disillusioned with life in large legal practices she is now able to use her skills to make a tangible difference to people’s lives, with Restitution providing the funding required to ensure strong but unfunded commercial cases can reach court.
“I love it, because it's genuinely helping people,” she says. “It’s levelling the playing field in David and Goliath scenarios.”
Co-founded in 2012 by former MBM Commercial partner David Calder, Restitution was set up to provide funding for commercial disputes that would otherwise would not get off the ground.
Ms Sim came on board in 2017 and has spent the last two years searching for cases to present to the group of high-net worth individuals that ultimately provide the money to get them away.
Noting that Mr Calder first came up with the idea for Restitution because “he had a filing cabinet of cases that were good cases but couldn’t be litigated because there were no financial means of taking them forward”, Ms Sim says that many of the matters that come across her desk originate from solicitors who are in the same boat.
“I spend a lot of time speaking to solicitors and I have a first vet of the cases,” she says. “We also have a QC on board in a consultancy role and if we think they are good cases we present them to our investors and they will say yes or no.
“Some are good cases [that can’t proceed] because there’s some financial difficulty but there doesn’t necessarily have to be a distressed situation – it might be that the company wants to keep the money on its balance sheet.”
One such case was brought by MBM Commercial client Derek Carlyle, a property developer who fought proceedings brought by Royal Bank of Scotland all the way to the UK Supreme Court and won. Without recourse to external funding it is unlikely he would have been able to pursue the matter that far, Ms Sim says.
“We only got involved at the Supreme Court stage,” she explains. “He had been funding the case himself but when you get to the Supreme Court the numbers change significantly.”
Though Ms Sim says that Restitution’s panel of investors back cases because they are driven by “high-level altruism”, she also notes that the funder “is a business, not a charity”.
All the cases it chooses to back are therefore picked based on how likely they are to succeed, with the investors receiving a share of any court-awarded damages. How much they get is confidential, but is decided on a case by case basis.
Despite this, Ms Sim says a recent case involving a Scottish businesswoman who received a substantial settlement after being systematically excluded from the family business she was a director of underlines how important a resource a litigation funder can be.
“By being able to provide funding for this case we saw justice served,” she says.
“Without funding the other shareholder’s unjust and underhand behaviour would have gone unchallenged.
“The client is now free to move on with her life. For our part it is clear to us that commercial litigation funding in Scotland is a growing and necessary tool for individuals, companies and their legal representatives.”
It is an area Ms Sim believes is ripe for growth, too, particularly as the number of cases being raised in the Scottish courts is continuing to fall.
“Funding is a huge issue and these cases would not have happened if they’d not been able to fund them,” she says.
“Last year there were around 83,000 cases raised in the Scottish court system. Over the last 10 years that has dropped by around a third.
“There are a lot of good reasons for that but one of them must be funding.
“As the cost of everything increases and businesses are looking at their balance sheets they have to decide if they’re going to litigate or if they are just going to write it off.”
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