Litigation as a business asset: Six reflections from a webcast with The Lawyer

When Burford Capital partnered with The Lawyer to publish The London Disputes Report, one of the clearest findings was that commercial disputes are increasingly being evaluated as business decisions, not simply legal ones. More than two-thirds of respondents said strong claims are never pursued because of cost or risk, while boards are becoming more sophisticated about treating disputes as financial assets.

Following the report's publication, Burford discussed those findings with Christian Smith of The Lawyer, alongside Per Hoffman (Ericsson), Richard Lewis (Hogan Lovells) and Manthi Wickramasooriya (Quinn Emanuel). It was striking how closely the panel's real-world experiences reflected the research. The data tells us where the market is moving; the discussion helped explain why. Across every topic—from cost pressures and enforcement to legal finance and AI, the conversation reinforced a common theme: Commercial disputes are increasingly being managed as business assets rather than simply legal processes. Watch the webcast on-demand.

Commercial considerations increasingly sit alongside legal merits

Strong legal merits remain essential, but they are no longer the only factor in deciding whether to pursue a claim. As Manthi Wickramasooriya explained:

"Today, merits remain important, but other considerations — cost, enforcement, reputational issues, timing and commercial value — have increased in prominence."

That reflects a broader shift in how businesses evaluate disputes. Legal teams are increasingly expected to demonstrate not only that a claim is strong, but that it aligns with wider business objectives, capital allocation priorities and enterprise risk.

Cost is changing which claims ever reach court or tribunal

One of the strongest themes throughout the discussion was the growing impact of dispute costs. Richard Lewis observed:

"There are many decent claims that could be run, and would have been run in the past, that are not now pursued because the cost is too great."

The research bears this out: 57% of respondents identified cost as the single biggest factor influencing whether disputes are pursued, and 67% agreed that many strong claims are never pursued because of cost or risk. Cost extends beyond legal fees, long-running disputes consume management attention and tie up capital. Increasingly, businesses are not deciding whether they can afford to lose a case, but whether they can justify the investment required to pursue one.

The conversation is becoming more commercial inside organizations

Per Hoffman described how company culture, business priorities and internal stakeholders all shape whether a dispute proceeds, with organizations increasingly taking:

 "A holistic view of any dispute... considering media, public perception, financial drivers, local politics and wider business factors."

Bringing finance, operations and executive leadership into dispute strategy earlier often produces better-informed decisions.

Winning the case is only part of the equation

Perhaps the biggest change over the past decade is that businesses now ask about recovery before proceedings begin. As Richard Lewis explained:

"Ten years ago, it was rare for a client to come to me with a claim and want to talk about enforcement and recovery before talking about the merits... Increasingly, these are the first issues that clients want to discuss."

The research found enforcement has become a central go/no-go consideration rather than an end-of-case issue. Sophisticated claimants now ask at the outset: Does the defendant have recoverable assets? In which jurisdictions? How long will recovery take? 

Legal finance has become part of mainstream dispute strategy

Rather than a niche funding option, the panel described legal finance as an established part of commercial dispute strategy. Richard Lewis noted:

"Funders changed that conversation. When you speak to a funder at the start of a case, one of the first questions is: Where are the assets, and how are we going to monetize any judgment?... Increasingly, clients ask those questions at the outset too."

He also highlighted an often-overlooked benefit:

"A funder can bring the process back towards rational, predictable decision-making, which makes disputes easier to manage."

From the corporate perspective, Per Hoffman explained why funding can make commercial sense even for well-capitalized organizations:

"There are two drivers I can see. First, litigation often lasts many years, potentially through several CFOs. A CFO may ask why the company should carry that burden on the balance sheet when other long-term financial exposures are structured differently."

"If litigation is recurring and connected to a core business area — for example, defending or protecting a strategic area through offensive litigation — and if outcomes have some degree of predictability, a finance arrangement may make commercial sense. A business case requires some predictability."

The research reflects this evolution: 73% of respondents reported direct experience of legal finance, 79% expect its use to become more common over the next five years, and 85% agree that risk-transfer tools improve litigation decision-making. Organizations are not turning to legal finance because they lack capital, they are using it to allocate capital more efficiently and treat commercial claims like any other long-term corporate investment.

Technology will change disputes, but judgement remains essential

The panel was optimistic about AI's potential to reduce costs in areas such as disclosure, but noted that its impact is more nuanced. While AI can streamline routine tasks, it also enables more extensive background checking and analysis, meaning any efficiency gains may be offset by the greater depth of work it makes possible. As Per Hoffman observed:

 "AI is not free. It also gives you the ability to do much more background checking and analysis."

Manthi added that even if technology makes individual cases cheaper, organizations may simply pursue additional claims previously considered uneconomic. Greater efficiency does not necessarily reduce overall litigation spend—it can expand the range of disputes businesses are prepared to pursue.

The research reached a similar conclusion: Respondents were divided on whether AI will increase or decrease costs, but broadly agreed technology will complement, not replace, professional judgment.

Looking ahead

Commercial disputes are undergoing a structural shift. Cost, duration, enforcement, legal finance and capital allocation are now central to dispute strategy, and organizations increasingly evaluate claims alongside other strategic investments.

The conversation is no longer simply about whether a claim can succeed in court or before a tribunal, it is about whether pursuing it creates value, and how that value can best be realized. The research suggests this evolution is well underway. Our discussion confirmed it.