Counterclaim funding
§ Foundational Principle
"HLCDC does not fund defenses. It funds claims. The fact that the claimant also happens to be a defendant in the same proceeding is a posture, not a product distinction."
Scope of Capital
What HLCDC funds - and what it does not.
HLCDC Funds
- -Counterclaim counsel fees
- -Expert witness and damages analysis
- -Discovery attributable to the counterclaim
- -Filing and procedural costs of the counterclaim
HLCDC Does Not Fund
- ×Defense costs in the underlying proceeding
- ×General legal expenses unrelated to the counterclaim
- ×Pre-litigation investigations
- ×Costs in ineligible jurisdictions
Eligibility
Threshold criteria.
- Dispute TypeCommercial litigation or arbitration only
- Counterclaim NatureAffirmative monetary claim, not a defensive set-off
- Counterclaim ValueUSD 5M – 50M (standard band)
- JurisdictionsUS · England & Wales · ICC · LCIA · ICSID · SIAC · select EU · Mexico
- CounselQualified counsel formally retained for the counterclaim
- Probability≥ 60% post-Optimism Discount (counsel-supported)
- Enforcement Score≥ 3 on HLCDC's 0–5 scale
Commercial Terms
Position, stated plainly.
- Upfront FeesNone
- RecourseNon-recourse, counterclaim proceeds only
- ReturnGreater of capital multiple or % of gross recovery (duration-banded, see below)
- DrawdownTranched, direct to counsel or approved vendors
- Defendant-Claimant ShareAll proceeds after the waterfall, typically the majority
- Per-Matter Cap12% of HLCDC committed capital (absolute maximum)
- Tail PeriodTypically 12–24 months post-termination (§ 8.2)
Recovery Waterfall
Counterclaim proceeds, gross, flow through the following sequence:
- 01HLCDC capital repayment
- 02HLCDC success return
- 03Balance to defendant-claimant
On failure, HLCDC bears the full loss. The defendant-claimant owes nothing.
§ 8.2 Duration-Banded Returns
The return floor scales with time.
HLCDC's recovery is the greater of a capital multiple or a percentage of gross recovery. Both floors widen as the matter's duration extends.
HLCDC takes the greater of the two figures. Where a global settlement resolves both the underlying defense and the affirmative counterclaim, the waterfall applies only to the portion attributable to the counterclaim (§ 8.7).
§ Enforcement Score
Self-assessment against the 0–5 scale.
HLCDC will not deliberate on a counterclaim with an Enforcement Score below 3. Defendant-claimants and counsel may estimate the matter's likely score against the criteria below.
§ Process
How HLCDC engages, from enquiry to deployment.
01
Initial Enquiry
Counsel or represented defendant-claimant submits a brief description, marked "HLCDC Enquiry". Inbound is segregated on receipt.
02
Conflicts & Threshold Check
HLCDC GC clears conflicts; first-pass eligibility against §§ 8.1–8.3 (commercial dispute, affirmative counterclaim, jurisdiction, counsel).
03
Common Interest Agreement
Executed before any privileged material is shared (§ 12.3). HLCDC and counsel coordinate document scope.
04
Underwriting
Seriousness Test, Optimism Discount (10–20pp), Enforcement Score (0–5), Interaction Risk assessment (§ 8.6), counterclaim-strategy review (Director, Counterclaim Strategy).
05
Investment Committee
HLCDC IC, separate from HLC IC, deliberates. Funding authority is final and non-delegable.
06
Documentation
Counterclaim Funding Agreement, Counsel Acknowledgment Letter (Appendix D), drawdown schedule, reporting covenants.
07
Deployment & Stewardship
Tranched draws direct to counsel and approved vendors. Active portfolio surveillance through resolution and waterfall settlement.
08
Resolution & Waterfall
On recovery, proceeds flow through the contractual waterfall: counsel fees and approved costs, HLCDC capital and return, then residual to the defendant-claimant. Closing memorandum filed with the IC and the file is sealed under § 8.4.
§ Indicative Timeline
Approximate engagement window.
Drawn from typical HLCDC mandates. Complex matters may run longer; uncomplicated screenings may resolve faster.
- Weeks 1–2Enquiry, conflicts clearance, threshold review.
- Weeks 2–4Common Interest Agreement; document production scope agreed.
- Weeks 4–10Underwriting, expert review, Enforcement Score calibration.
- Weeks 10–14IC deliberation and decision.
- Weeks 14–18Documentation, signing, first drawdown.
§ Prohibited Categories
Stated without exception.
HLCDC will not consider matters falling within these categories. The exclusion list mirrors HLC's, with one HLCDC-specific addition: defensive set-off mischaracterised as an affirmative counterclaim.
- ×Criminal defence
- ×Family law / matrimonial
- ×Personal injury
- ×Mass torts and class actions
- ×Consumer litigation
- ×Regulatory defence (purely defensive)
- ×Pure set-off dressed as a counterclaim
- ×Working-capital substitution
§ 8.6 Interaction Risk
Risks specific to defendant-side counterclaims.
HLCDC's underwriting includes a mandatory Interaction Risk assessment, risks unique to the procedural position of an affirmative counterclaim sitting alongside a defense.
Mootness
Risk that resolution of the principal claim moots or extinguishes the counterclaim before recovery.
Set-off
Risk that the counterclaim is treated as a defensive set-off rather than recovered as an affirmative claim.
Settlement Linkage
Pressure to compromise the counterclaim as part of resolving the underlying defense exposure.
Defense Collapse
Material adverse change in the underlying defense that compromises the procedural posture of the counterclaim.
§ XIV, Conditional Hold
What if we don't yet have separate counterclaim counsel?
Many corporate defendants are first introduced to HLCDC through their defense counsel. Where qualified counsel for the affirmative counterclaim has not yet been formally retained, HLCDC will engage with defense counsel under a Common Interest Agreement and place the matter on a 30-day Conditional Hold pending counsel retention. The hold preserves the matter's place in the pipeline without committing IC capacity prematurely.
HLCDC does not act as a referral agent or broker for legal services. Counsel selection is the defendant-claimant's exclusive responsibility.
§ Documentation Suite
Standard instruments across every HLCDC mandate.
Common Interest Agreement
Required under § 12.3 before any privileged material is shared between counsel and HLCDC. Preserves work-product and attorney-client privileges across the funding relationship.
Counterclaim Funding Agreement
The principal commercial instrument. Sets out the budget, drawdown schedule, waterfall, settlement-allocation methodology (§ 8.7), and reporting covenants.
Counsel Acknowledgment Letter
Required per Appendix D. Counsel acknowledges receipt of the funding terms, the Non-Interference Doctrine, and the boundaries of HLCDC's information rights.
Capital Retrenchment Notice (contingent)
Per § 4.6, HLCDC commits to 48-hour written notification in the event of a Capital Retrenchment event. Existing commitments remain binding regardless.
§ Questions
Frequently asked.
Does HLCDC fund the underlying defense?
No. HLCDC funds claims, not defenses. Capital is deployed exclusively to the prosecution costs of an affirmative counterclaim. Defense costs in the underlying proceeding are explicitly excluded.
What if our counterclaim fails?
HLCDC bears the full loss. The funding is non-recourse, the defendant-claimant owes nothing to HLCDC if the counterclaim does not produce a recovery.
What if the matter resolves through a global settlement?
Per § 8.7, where a global settlement resolves both the claims against the defendant and the affirmative counterclaim, HLCDC's waterfall applies only to the portion of the settlement reasonably attributable to the counterclaim. Allocation methodology is agreed in the Counterclaim Funding Agreement.
What is the relationship to HLC?
HLCDC is a separate legal entity with its own capital, Investment Committee, and officers. A formal § 8.4 information barrier prevents personnel, files, or decision-making from crossing between the two entities. The doctrine is shared. The decisions are not.
Is HLCDC's involvement disclosed to the opposing party?
Not voluntarily. Where procedural rules of the forum require disclosure, it is limited to the minimum required by those rules.
What if we don't yet have separate counterclaim counsel?
See the section below, HLCDC will engage briefly with defense counsel under a Common Interest Agreement, with a Conditional Hold pending counsel retention for the counterclaim itself.
§ Institutional Separation
A separate entity. A strict barrier.
HLCDC is a legally distinct entity from Hudson Litigation Capital. It maintains its own capital pool, Investment Committee, compliance function, and records infrastructure. The affiliate relationship confers no operational authority, no shared capital access, and no information rights between the entities.
A formal information barrier governs personnel, files, and decision-making on funded matters. HLCDC's involvement is not voluntarily disclosed to the plaintiff; where procedural rules require disclosure, it is limited to the minimum required.
Enquiries
HLCDC accepts enquiries from qualified legal counsel and represented corporate defendant-claimants. Mark all correspondence "HLCDC Enquiry".