We recently met up with Kees Jan Kuilwijk to discuss litigation funding; due to the COVID-19 restrictions, the meeting was via the computer screen rather than in person.
Born in Achterhoek, Kees Jan has over 30 years of experience as a lawyer, specializing in European law. He has focused on competition law over the past 15 years in his career. During this time, Kees Jan introduced a client who had no means to finance proceedings to Liesker Procesfinanciering. While handling this case, Kees Jan was invited to enter into a partnership with Liesker Procesfinanciering, and his experience and network in Belgium proved to be a good fit for the organization.
Founded in 2011 by Chris and Sara Liesker (both of whom are former lawyers), Liesker covers all the costs of the legal proceedings from beginning to end. In return, in the event of a successful outcome, part of the proceeds are paid to the litigation financier. A party that does not have the means to finance proceedings can thus pursue promising cases despite a financially strong opponent. Liesker was founded to counterbalance social injustice, however, companies that simply do not want to run any financial risk when starting a legal procedure are increasingly finding their way to Liesker.
Kees Jan has been involved with Liesker Litigation Funding for almost two years now, focusing on the Dutch-language cases in Belgium.
In the UK and USA litigation funding is common and is also used by parties that have the means to finance a procedure themselves. Larger companies are increasingly adopting this method, which allows them to take the costs off their balance sheets. Could you tell us more about this?
In the Netherlands and Belgium, litigation funding is becoming more widely known. Previously, 90% of applications were referred by a lawyer, now this is less than 50%. Entrepreneurs are increasingly able to find their way to us on their own. All cases we take on are thoroughly reviewed by us, and a case handler is assigned to the case.
For entrepreneurs, a lawsuit often costs a great deal of negative energy and they usually prefer to focus on other aspects of the organization. This is something we completely understand. With our knowledge and experience we can take over the problem and often become the first point of contact for the attorney.
Larger companies are interested because it’s just another way of smart financing.
What is one of your key goals for litigation funding?
I would like litigation funding to become even more widely known. There are still too many victims and attorneys who have not heard of litigation funding or do fully understand the concept. Attorneys sometimes think that we will take over a case. We never do that, as we are not attorneys. We finance from a distance and can often make a valuable contribution through our knowledge and experience, if necessary.
Are mass tort and cartel claims expected to play a much bigger role in the future?
The Netherlands is known for its expertise in the field of mass damage and cartel claims, judges are experienced in this field and the jurisprudence has developed favorably in our country. Customers of an organization who have paid too much unite and submit a joint claim. This can involve hundreds of customers from all over the world. The aggrieved parties can transfer their claim to a Special Purpose Vehicle that can litigate on behalf of all the collected claims. Not all European legal systems have a statutory regulation for mass claims, but in the Netherlands it is well regulated. Fortunately, the new legislation of 2019 contributes to an even better, more uniform procedure which will lead to more cases.
Does COVID-19 affect litigation funding? Does it result in more or fewer cases?
Numerous companies have run into financial difficulties due to COVID-19. At Liesker, we think that this will lead to more applications. Often, the cases are pending before the court, the attorney’s fees can no longer be paid due to financial difficulties. Liesker then takes over the costs involved, which allows the entrepreneur the opportunity to continue litigating.
What about your work gives you the greatest satisfaction?
I get the most satisfaction when distressing cases are won. For example, an inventor whose patent has been infringed by a large market player and who does not have the legal expertise or financial resources to start and win a case. If we can assist these clients and provide them with funding, that gives a great deal of satisfaction. Often, these kinds of cases involve substantial financial interests.