Matthew Kain writes in Legal Finance Expert about what the Safra v WilmerHale decision means for litigation funders
Matthew Kain writes in Legal Finance Expert about the potential implications of the High Court’s recent decision in Safra v Wilmer Cutler Pickering Hale and Dorr LLP, in which the court ordered a full assessment of WilmerHale’s $35.3m bill.
Matthew explains why the ruling is likely to lead to closer scrutiny of retainers, billing practices, hourly rate increases and ongoing costs monitoring in high-value funded disputes.
Matthew’s article was published in Legal Finance Expert, 19 June 2026, and can be found below.
What does the High Court ruling over assessment of $35m in legal fees mean for litigation funders?
Matthew Kain, CEO of Kain Knight
The decision in a recent High Court case brought by Brazilian billionaire Alberto Safra against US law firm, WilmerHale, has important implications for litigation funders.
In March, Safra won a review against WilmerHale in the High Court, Senior Courts Costs Office: WilmerHale: Alberto Joseph Safra v Wilmer Cutler Pickering Hale and Dorr LLP [2026] EWHC 703 (SCCO) https://caselaw.nationalarchives.gov.uk/ewhc/scco/2026/703.
The costs judge, Colum Charles Leonard, ordered a full assessment of the law firm’s final bill of $35.3 million (£26.2 million) for arbitration fees, which Safra is challenging, for representing him in five London Court of International Arbitration (LCIA) proceedings.
Safra had been represented by WilmerHale for nearly two years in a dispute over the $23 billion estate of his late father, Brazilian banker Joseph Safra, and requested that the High Court assess a number of the firm’s invoices. In evidence, the court heard that Wilmer charged Safra more than $162,000 in a single day, with partners billing $2,095 an hour – $265 more per hour than Safra had initially agreed to in 2022.
“I have not previously encountered a case in which such levels of costs accrued with such limited information being provided to the client,” said Judge Leonard in his ruling. He added: “Throughout all of the invoices, there are charges which are so high as to raise concern.”
He referenced WilmerHale partner John Trenor’s charges for 19.3 hours in one day and another 24-hour period in which nine of the firm’s fee earners billed for 130.2 hours. The judge also pointed out that WilmerHale had initiated two separate hourly fee rate increases, totalling 14%, without once notifying Safra. “The need to raise them (rates) further (so quickly, and by so much) calls for an explanation,” said Leonard before ordering a full assessment of WilmerHale’s bill.
So, what are the wider lessons of this decision for those involved in high-value funded disputes?
Although Safra’s case concerned a solicitor-client assessment, the decision has important potential ramifications, both for litigation funders and for the parties involved in such high-value funded disputes. Where legal costs are invariably substantial, the terms, management and communication of those costs is likely to come under much closer scrutiny in future as a result of this decision.
In the Safra case, the court considered whether WilmerHale’s retainer constituted a contentious business agreement, or a standard retainer. In reaching his decision, the costs judge raised concerns regarding the level of information that was provided to the client about costs, including significant hourly rates and further increases to those rates during the course of the instruction.
It is evident from the court’s decision that costs exposure in high-value funded litigation needs to be monitored carefully and regularly throughout the life of a case, rather than being reviewed only once costs are challenged or assessed.
At a practical level, solicitor-client assessments of this nature can often become lengthy and hard fought, particularly where the parties’ positions are entrenched and the sums at stake are significant. There is an evidential burden on the receiving party to justify the costs claimed, which makes the maintenance of contemporaneous records to support hourly rates and time spent of significant importance.
Similarly, litigation funders need to pay close attention to retainer terms, costs updates, hourly rate increases and the level of detailed information provided to clients about likely costs.
Detailed assessment proceedings can have a significant impact on assumptions relating to legal spend, recoverability and the overall costs risk attached to a funded claim.
To prevent creeping fees from diminishing their overall returns, greater transparency will require funders who back complex disputes to demand that law firms provide detailed and itemised cost estimates at the outset. They will also need to review the billing practices and SRA-compliance of the law firms whose fees they are funding, particularly in relation to how often and when clients are informed of increased costs and billable hours.
Communication is therefore key: any material changes which are made to fee rates, or other factors relevant to those ultimately paying the bill, during the course of proceedings should be clearly communicated to all the relevant parties in advance.
The practical implications of the Safra decision for litigation funders, law firms and parties involved in high-value funded disputes should be self-evident. In relation to costs oversight, record keeping, client communication, the lessons outlined by the judgment are clear.
Failure to follow these lessons in relation to clarity and billing requirements increases both the legal and financial compliance risks that litigation funders need to manage during high-value cases.
To minimise the likelihood of detailed assessments becoming lengthy and contested processes and to mitigate the risk of an adverse outcome, transparency and communication must therefore be put front and centre in how both law firms and funders operate in relation to fees and costs.
