INDEMNITY COSTS AGAINST FUNDERS : WHO PAYS WHAT FOR WHEN?

In Excalibur Ventures & others -v- Psari Holdings & ors [2014] EWHC 3436 Christopher Clarke LJ awarded costs on an indemnity basis against third party funders.  Many important matters of general importance are considered.

THE CASE

The claimants brought what turned out to be an extremely speculative case against the defendants.  Costs were awarded against the claimants on an indemnity basis. The claimants did not pay and an application was made against the funders. Some of the funders admitted liability to pay but not on an indemnity basis; some denied any liability, one did not acknowledge service.

BACKGROUND TO THE ACTION AND THE AWARD OF INDEMNITY COSTS

The claimants had been ordered to provide security for costs. However there was a significant shortfall of £4.0 million.

1. Excalibur was ordered to provide and did provide security for the Defendants’ costs in the total sum of £ 17.5 million. That security was furnished from funds derived from the three sets of funders (Lemos/ Psari, the Platinum funders and Blackrobe). When determining what sum to order by way of security the Court did not assume that Excalibur would have to pay costs assessed on an indemnity scale. In practice the Defendants had no prospect of obtaining security for costs assessed on that basis. Most of the Defendants’ costs are met by the security ordered but there is a shortfall currently estimated by the Defendants to be about £ 4.8 million, which, mostly and perhaps entirely, represents the difference between standard and indemnity costs. The fact that the security has turned out to be inadequate is not, however, a ground for declining to make a non-party costs order; if anything the reverse is true: Petromec v Petroleo Braisleiro Petrobas [2006] EWCA Civ 1038 at [14] per Longmore LJ; and Dolphin Quays Developments v Mills [2008] 1 WLR 1829 at [62] per Lawrence Collins LJ.
2. I awarded indemnity costs against Excalibur for a variety of reasons which I set out at length in my judgment of 13 December 2013 (“the costs judgment”) and which I held took the case “well outside the norm“. I am content to adopt Mr Richard Waller QC’s summary of my findings which were that:

“This case was ‘well outside the norm’ (emphasis added) for a ‘considerable number of reasons’. In summary, the Court found that:

i) the claim was essentially ‘speculative and opportunistic’;

ii) the claim involved litigation ‘gargantuan in scope’, but based on ‘no sound foundation in fact or law’ which met with a “resounding, indeed catastrophic, defeat’;

iii) the claims were ‘replete with defects, illogicalities and inherent improbabilities;’

iv) the claims were ‘spurious’ and ‘pursued relentlessly’ to the ‘bitter end;’

v) the Defendants were presented with a case that ‘changed as the difficulties in its exposition became apparent;’

vi) the claim was ‘grossly exaggerated’ in quantum;

vii) the claim involved ‘unsuccessful allegations of untruthfulness or dishonesty’ against a chief executive of a publicly listed company, which was unsurprisingly picked up by the press;

viii) the claim was ‘a major source of disruption to Gulf’s business’ and to a lesser extent Texas;

ix) the claim imposed an enormous drain on the resources of the Court;

x) Mr Wempen told lies and misleading statements from the outset;

xi) the prevention case was ‘a dishonest case’;

xii) Mr Park’s conduct and failings as an expert were ‘outside the norm’;

xiii) Clifford Chance’s correspondence was ‘voluminous and interminable,’ ‘heavy-handed’ and in some instances ‘aggressive’ and ‘unacceptable in content’ including making ill-founded allegations of criminal conduct;

xiv) In respect of disclosure, there were ‘extravagant demands’, and ‘important documents were wrongly made the subject of claims for privilege.’“

1. To some extent that underestimates my criticisms of the litigation which included the fact that the demands for disclosure in relation to the hopeless alter ego allegation were wholly disproportionate and that Eric Wempen’s evidence was also in part untruthful.
2. The purpose of an order for indemnity costs is not to impose a penalty on the unsuccessful litigant (or his funders). It is to afford the successful party a more generous criterion for assessing which of his actual costs should be paid by his opponent because of the way in which the latter, or those in his camp, have acted. I set out some of the principles relating to the grant of indemnity costs in the costs judgment.

CONSIDERATION OF THE COURT’S POWER TO MAKE A COSTS ORDER AGAINST A NON PARTY

1. So far as the discretion under section 51 (3) is concerned, the test is whether in all the circumstances it is just to exercise the power: Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232, 240.
2. The Court’s discretion under section 51 (3) extends to the form of order to be made, the proportion of any costs to be paid, and the quantum of any award: Nelson v Greening [2007] EWCA Civ 1358. Thus if a third party order is made it does not have to be on the basis of joint and several liability with the litigant. The discretion is very wide such that there can be no comprehensive checklist of necessary (or sufficient) factors: Systemcare (UK) Ltd v Services Design Technology Ltd [2011] EWCA Civ 546 at [26] and [64].
3. The principles upon which the Court exercises its discretion were summarised by Lord Brown of Eaton-Under-Heywood in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807 at [25] in the following way:

i) A costs order against a non-party is ‘exceptional’, but ‘exceptional’ means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such ‘exceptional case’ is whether “in all the circumstances it is just to make the order“.

ii) The discretion will not generally be exercised against ‘pure funders’ but where:

“the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs. The non-party in these cases is not so much facilitating access to justice by the party funded as himself gaining access to justice for his own purposes. He himself is “the real party” to the litigation…“

iii) The most difficult cases are those in which non-parties ‘fund receivers or liquidators (or, indeed, financially insecure companies generally) in litigation designed to advance the funder’s own financial interests’ (emphasis added). Lord Brown said this at [29]:

“In the light of these authorities their Lordships would hold that, generally speaking, where a non-party promotes and funds proceedings by an insolvent company solely or substantially for his own financial benefit, he should be liable for the costs if his claim or defence or appeal fails.“

iv) Where a funder says that there was no impropriety in promoting a claim because it received ‘encouraging advice’ from its lawyers:

“This cannot, however, avail them. The authorities establish that, whilst any impropriety or the pursuit of speculative litigation may of itself support the making of an order against a non-party, its absence does not preclude the making of such an order.“

Application

1. In the light of those principles I have no doubt but that Psari and Mr Lemos (hereafter “Psari/Lemos”) were right to accept (as, to his credit, Mr Lemos did on 6 March 2014) that they should be liable to the Defendants for their costs. The claim could not have been brought without their assistance; they stood to benefit from its success to the tune of a healthy multiple of their investment. That the pursuit of speculative litigation is in the same category and to be viewed in the same way as impropriety for these purposes was affirmed by Rix LJ in Goodwood Recoveries Ltd v Breen [2006] 2 All ER 533 at [59]. Similar considerations apply to the other funders.
2. In the same case Rix LJ, with whom May LJ agreed, accepted that where a non-party director could be described as “the real party“, seeking his own benefit, controlling and/or funding the litigation, then:

“even where he has acted in good faith or without any impropriety, justice may well demand that he is liable in costs on a fact sensitive and objective assessment of the circumstances“.

This was a departure from an earlier requirement of want of good faith or impropriety: Metalloy Supplies Ltd v M/A. (UK) Ltd [1997] 1 WLR 1613, 1620; an approach applied in Landare Investments Ltd v Welsh Development Agency [2004] EWHC 946 (QB). In Systemcare Lewison LJ drew attention to the “and/or” formulation. Both elements did not need to be present. In Sims v Hawkins [2007] EWCA Civ 1175 Rix LJ had referred to the principal question “whether the non-party (who renders himself liable to the regime, whether by funding or controlling the litigation or even in some other way)” was the “real party” to the litigation. The disjunctive is, also, apparent in the passage from Dymocks cited at para 65 (ii) above.

INDEMNITY COSTS AGAINST THE FUNDERS

The judge considered the circumstances of the case in relation to the degree of control some of the funders had over the litigation.

Indemnity costs against the other funders

1. None of those circumstances cause me to regard an order that the other funders should, like Psari/Lemos, contribute to costs on an indemnity scale as unjust. On the contrary, it seems to me that, having taken the commercial decision to leave everything in the hands of Excalibur and Clifford Chance (and in the case of Psari having required Excalibur to engage them) they must bear the burden of the costs that they have caused the Defendants thereby to incur, including any attributable to any actions of Clifford Chance, assessed on the same scale as applicable to those to whom they entrusted their fortunes.
2. There is no good reason to distinguish between the funders. The considerations relevant to the position of Psari/Lemos are largely applicable to the others. As with Mr Lemos, the other funders hoped to derive large sums from the claim, which could not have been continued without them. Between them they transformed Excalibur from a shell into a company fully resourced to carry on the litigation to the bitter end and on a massive and disproportionate scale.
3. In the case of the Platinum funders the position in relation to due diligence was different but scarcely better since what Orrick did was a very limited review and was largely parasitic on the work of Clifford Chance. As Mr Simony put it “neither I nor Mr Werblowsky, nor the companies represented, had sufficient information about the claim to be able to assess the merits and identify the failings in the claim eventually identified by the judge“. Adopting a claim whilst unable to assess the merits sufficiently risks exposure to indemnity costs when the case turns out to be as bad as this one. Mr Simony was also aware of the proposal to use the “smoking gun” and the strategy to go for Mr Kozel, which miscarried.
4. In the case of Blackrobe and Blackrobe Capital I have no evidence from the individuals concerned. But it seems to me that they are in no different position to that of the Platinum funders, with whom they marched broadly in step.
5. In short, in a case of this kind justice requires that, when the case fails so comprehensively, not merely on the facts but because it was wholly bad in law, the funder should, subject to the Arkin cap, bear the costs ordered to be paid by the person whom or which he has unsuccessfully supported, assessed on the scale which the court thinks it just for that person to pay in the light of all the circumstances, including but not limited to that person’s behaviour and that of those whom that person engaged. In short, he should, absent special circumstances, follow the fortunes of those from whom he himself hoped to derive a small fortune. To do otherwise would, in my judgment, be unfair to the Defendants and their personnel, who were on the receiving end of claims and actions of the character that I described in the costs judgment.
6. In this respect I note that in R v SSHD ex parte Osman [1993] COD 204, where an order for indemnity costs had been made against Mr Osman, the Divisional Court (Kenney LJ and Waterhouse J), thought that it was prima facie right that the third parties who had supported the litigation should be ordered to meet the costs orders made against the applicant and ordered the applicant and his solicitors to disclose their identities. The observation was made at an interlocutory hearing and without any order having been made on that basis. A similar approach was taken in Murphy v Rayner[2014] 1 WLR 672 where the Legal Services Commission was ordered to pay the costs of a successful defendant which had been awarded to him on the indemnity scale. However, the LSC took no point about the scale. See also R (Gunn) v SSHD [2004] 1 WLR 1634 [50]; and Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232 [34].
7. To mak.e an order for indemnity costs would not be to penalise but to recompense. The sum presently in issue – about £ 4.8 million – is not disproportionate to the total monies contributed by Psari (and other funders), or to the individual contributions of most of them, and certainly not disproportionate to the anticipated return.

CONSIDERATION OF THE AUTHORITIES IN RELATION TO INDEMNITY COSTS

The judge went on to consider the authorities in relation to indemnity costs against third party funders.

Authorities

1. As I have indicated, Psari/Lemos submit, as do the other funders represented, that no order should be made against a funder to bear costs on an indemnity basis unless grounds for doing so are made out against them independently of any grounds that may exist for making such an order against those they have funded.
2. In Relfo Limited v Varsani [2012] EWHC 3848 financial assistance was given to the defendant by two gentlemen one of whom was the defendant’s father. Between them they controlled the dishonest defence of the action, from which they stood to benefit and they gave dishonest evidence in it. Sales J, as he then was, made an order for indemnity costs against them. That was, therefore, a case where the funders had to pay indemnity costs where they had been in control of the action and personally dishonest.
3. In Gatnom v Sanders [2011] EWHC 3716 (Ch) a company was ordered to pay the costs of the proceedings against it on an indemnity basis. A director of the company was ordered to pay the costs of the claimant on the same basis. He was the company’s ultimate beneficial owner, the guiding force behind its dishonest defence, and had given untruthful evidence.
4. I do not regard either of these cases as authority for the proposition that the question whether funders should pay indemnity costs must be determined by whether it was culpable or unreasonable conduct of themselves personally which took the case outside the norm. As Mummery LJ said in Secretary of State for Trade and Industry v Aurum Marketing [2000] EWCA Civ 224 at [4] what may be sufficient to justify the exercise of the discretion in one case should not be treated as a necessary factor for its exercise in another.
5. To introduce the principle contended for would unacceptably limit the width of a discretion which is intended to be a wide one – that the court should make the order that it thinks just. Moreover its application would give rise to justifiable objections.
6. The grounds upon which I ordered indemnity costs against Excalibur fall into different categories. Some such as Mr Wempen’s lies, Mr Park’s conduct and Clifford Chance’s correspondence and approach to disclosure are based on personal faults or failings. However, a client may find himself, as Excalibur did, liable to pay indemnity costs on account of the behaviour, some of which may be dishonest, of those whom he has chosen to engage (e.g. lawyers or experts, who may themselves have been chosen by the lawyers.) or enlist (e.g. witnesses), even though he is not personally responsible for it. That being so, there is, to my mind, no good reason for disregarding the acts or omissions of such persons when considering whether to make an order against a funder, even if the funder did not know of those faults or failings. This is particularly so in the case of Psari/Lemos given that, rightly or wrongly, Psari/Lemos regarded Clifford Chance, as “for all intents and purposes our legal advisors“.
7. Another category related to the characteristics of the claim and its promotion (see (1) – (7) and (11) in [58] above). I do not regard it as just to disregard those matters save to the extent that it is established that the funders appreciated how bad the claim was, and how unreasonably it was being pursued, or the extent to which they personally authorised the form of that pursuit. Such an inquiry would, in any event, be difficult in circumstances where the true position is in large measure known only to the funder and his agents and where many of the relevant communications may be privileged (either in favour of the funder or the person funded). It would, also, not be fair to the Defendants to reach any conclusion based on advice said to have been given without knowing the totality of that advice.
8. A further category relates to the effect of the proceedings on the Defendants especially Gulf. If the proposition argued for requires that to be ignored it is unjust.
9. Even if, which I do not accept, it is, for present purposes, necessary to ignore the conduct of the claim, nevertheless its character (looked at objectively), size and effect would, by themselves, justify indemnity costs being ordered against the funders. That the question needs to be considered objectively is apparent from Fulton Motors Ltd v Toyota (GB) Ltd [2000] CP Rep 24 (indemnity costs of an appeal ordered against directors with a personal stake in the litigation financing an appeal which could not “on any realistic assessment” be said to have a good prospect of success).
10. In this respect a claim can be regarded as speculative even if the claimant has received strong advice as to its merits: BE Studios v Smith & Williamson Ltd [2005] EWHC 2730 (Ch) at [19] per Evans-Lombe J. See also Dymocks Franchise Systems (NSW) Ltd v Todd [2004] 1 WLR 2807 [33] where the Privy Council regarded the existence of encouraging advice from leading counsel as no ground for not making an order under section 51. Nor do I regard the fact that the funders had legal advice that the claim was good as meaning that no order should be made for indemnity costs.
11. I am, of course, conscious that I am considering what order to make in respect of costs with the benefit of hindsight. That is because my judgment is an objective assessment of the merits of the claim, which is what is required. In any event the defects in the case were apparent or detectable at an earlier stage. For instance, in her judgment of 28 June 2011 Gloster J said that she had seen “no evidence that Excalibur had ever participated in any project or that it possessed the technical know-how, capacity or capital required to invest or participate in an oil exploration and production venture” and observed that, on the evidence before her, there was a strongly arguable case that the Gulf Defendants were not party either to the Collaboration Agreement or the arbitration agreement contained within it, as indeed they were not. The problems with the case which were apparent to me at the end of the openings became increasingly manifest in the light of the cross examination of both Wempens and Mr Park.
12. The claim was put at $ 1.65 billion when, on my assessment, calculating damages at the date of breach, it was worth at best $ 3.3 million. The claim for specific performance and for that level of damages, calculated at the date of trial was designed to procure a settlement. The evidence of Mr Lemos was that the funders all agreed to produce funding on the clear assumption that the claim would settle before it went to trial. That that is the usual modus operandi of professional funders is clear from the evidence of Mr Simony. The likely effect of a claim of this size is to create great uncertainty for the Defendants’ business, as must have been obvious, and to drive them to the negotiating table, as the funders always intended. Mr Lemos was advised in terms by Mr Panayides that Excalibur intended to wait for Gulf and Texas to make the first move “because the case continued to be so strong.” That that was the aim no doubt played its part in the unreasonable manner in which the case was pursued and is another circumstance which, when taken with the other matters referred to in my costs judgment, makes it just that the funders should pay costs and on the same scale as Excalibur.
13. The supposed principle looks at the question from only one point of view – that of the funder. It ignores the effect and character of the action which he has funded on the defendants; whereas the derivative nature of his involvement should, as it seems to me, ordinarily lead to his being required to contribute to the costs on the basis upon which they have been assessed against those whom he chose to fund. Whilst the funders had the choice of which claims to back and whom to instruct, the Defendants could not choose by whom to be sued or in what manner. If, then, the funder’s witnesses turn out to be liars or the litigation is conducted unreasonably, so that the court awards costs on an indemnity scale, it is just and equitable that the funder should pay on that scale.
14. One of the reasons for indemnity costs was the fact that baseless allegations of dishonesty were made against Mr Kozel. The funders appear to have been aware that one of the aims of the litigation strategy, including allegations of dishonesty, was to undermine Mr Kozel and so put pressure on him to settle.
15. Whilst the funders can have had no personal knowledge of whether the allegations were well founded or not, one of the risks of making an unsuccessful allegation of dishonesty is that (even if the allegation is not improperly made) it may well attract indemnity costs, as some imperfect recompense to the Defendants for what they have had to endure. In the present case the allegation of dishonesty in relation to the letter of 24 November 2007 was a relatively minor consideration in my determination to award indemnity costs. More significant was the fact that the case was opened on the basis that the court would be invited to find that it could not safely conclude that the Kozel brothers spoke the truth. Similar considerations apply in respect of the disruption of the Defendants’ business: Amoco (UK) Exploration Company v British American Offshore Ltd 22 November 2001 per Langley J [7]. See also the costs judgment at [42] – [47]. That risk should apply both to Excalibur and its funders.
16. I recognize that there are, in this context, potentially competing public policies. If professional funders are exposed to the risk not only of standard but also of indemnity costs they may decline to fund, or only be prepared to do so at a higher cost or, perhaps more likely, against some form of indemnity or an increased reward for success, even in relatively standard cases. In either case access to justice may be curtailed. Alternatively they may seek to intervene in the proceedings in a manner which runs the risk that their agreement to support the litigation is champertous or close to it. An exceptional case, such as the present, should not, Mr Croxford QC submits, introduce a principle which may affect cases which are within the norm.
17. I do not regard these considerations as compelling. Indemnity costs are awarded in circumstances (including but not limited to the conduct of a party and not necessarily involving dishonest, morally culpable or improper behaviour) which are outside the norm. This case was well outside it. The sums at stake were as huge as the deficiencies in it were egregious. I do not think it appropriate to reach some different conclusion because of any potential impact of my decision on possible future funders in quite different cases. I entertain some doubt that my decision will send an unacceptable chill through the litigation funding industry, whose aim is not to finance hopeless cases but those with strong merits. If it serves to cause funders and their advisors to take rigorous steps short of champerty, i.e. behaviour likely to interfere with the due administration of justice, – particularly in the form of rigorous analysis of law, facts and witnesses, consideration of proportionality and review at appropriate intervals – to reduce the occurrence of the sort of circumstances that caused me to order indemnity costs in this case, that is an advantage and in the public interest.
18. I also do not accept that I should embark upon some exercise of working out which of the reasons that caused me to order indemnity costs should be classified as constituting conduct for which the funders are responsible and ascertaining the extent to which that conduct caused costs to be incurred. This would be an impossible task. It is, in any event, the conduct of the funders in promoting this litigation with all its ills that makes it just to award indemnity costs against them as well.
19. Lastly, Mr Croxford said that it was relevant to consider whether or not the Defendants had a suitable summary remedy against Clifford Chance and the Wempens which they have chosen not to deploy and which I should take into account in deciding what is just. As to that, the Wempens have insufficient money; and to secure an order for wasted costs against Clifford Chance would require the Defendants to surmount a very high hurdle. I do not regard the possibility of a wasted costs order against either the Wempens or Clifford Chance as a reason not to make the order which I propose.
20. I therefore propose to make an order that the funders should be liable for Excalibur’s costs assessed on the indemnity scale.

THE “ARKIN CAP”

The “Arkin Cap” is explained as being relevant to some of the funders.  The principle of the “Arkin cap” is that a professional funder should normally be potentially liable to the opposing party to the extent of the funding provided.

The Arkin cap

1. The position of a professional funder i.e. a funder who has a commercial interest in the outcome of the litigation, as opposed to a “pure funder”^[4], was considered by the Court of Appeal in Arkin v Borchard Lines Ltd (Nos 2 and 3) [2005] 1 WLR 3055. The Court recognised that there were two competing principles. The first was that costs should follow the event so that a funder who wholly or partly causes the defendant to incur costs should be liable for those costs. The second was the policy of ensuring access to justice. Exposure of funders to the risk of having to pay costs of the opposing party assessed on an indemnity basis might increase the risk and hence the price of funding litigation.
2. The solution derived by the Court was to hold that a professional funder who financed part of a claimant’s costs of litigation (£ 1.3 million in respect of the cost of expert evidence), should be potentially liable for the costs of the opposing party to the extent of the funding provided. The Court said that it could see no reason in principle why the solution suggested should not also apply where the funder had contracted the greater part, or even all, of the expenses of the action. But it reached no decision on the point.
3. It seems to me that it is appropriate to apply the Arkin cap in the present case. The position might be different if a funder had behaved dishonestly or improperly or if, as the Court put it in Arkin, “the funding agreement falls foul of the policy considerations which render an agreement champertous” e.g. if the funder has taken complete control over the litigation. In such a case it may be that there should be no cap at all.

THE ARKIN CAP IN THIS CASE

Security for costs

1. A question arises, which I was told had never previously been addressed, as to whether the cap should be measured by reference (a) only to the amount contributed to Excalibur in respect of Excalibur’s costs (as contended for by the Platinum funders but not Psari/Lemos) or (b) that amount plus the amount contributed solely to enable Excalibur to give security for the Defendants’ costs. In support of the former it is submitted that the provision of security for costs is a potential, and, in the events which have happened, an actual, contribution to the costs of the successful Defendants for whose benefit it enures. By contrast a funder of legal expenses does not, section 51 apart, stand to pay anything to the defendant if the claimant loses. In those circumstances a cap on further contribution should not be measured by reference to contributions towards security for costs.
2. In my view the answer is the latter. The function of the cap is to limit the costs which the funder has to pay by reference to the money that he has put up to finance the action. He should be required to pay the successful defendant no more than he was prepared to put up in relation to the action himself. The cap bears no necessary relationship to the costs which the Defendants have incurred so as to fall to be reduced to the extent that they are covered. The fact that there is security for those costs will, of course, reduce the amount that falls to be paid subject to the cap.
3. The provision of money to Excalibur in order that it may provide security for costs is not the equivalent of a payment of costs ordered at the end of the case. It was a form of funding of the claim in exchange for a return attributable to the monies provided for that purpose – in effect an investment. If the action was to continue it was, of course, beneficial for the Defendants to have security rather than not. But continuance of the action was the last thing they desired. The provision of money for security was the only means by which that could happen and it resulted in the Defendants continuing to incur the costs and suffer the detriment which the action cast upon them.
4. It is noticeable, in this connection, that both Hamilton and JH were under the relevant Funding Agreements to be remunerated in accordance with the Hamilton formula applied to their contributions even though they were for Excalibur to provide security for costs or pay its own legal expenses. Further, in the relevant Agreements Hamilton and JH agreed to be liable for any costs assessed against Excalibur in connection with the litigation to the extent of the Disbursements i.e. the funding of security for costs actually made: see clause 4.1.19 of the 1^st Hamilton Funding Agreement and the Facility Agreement of 8 March 2013 taken with the definition of “Disbursements” therein. In effect they were agreeing, as between themselves, to accept liability for costs assessed against themselves to the extent of the Arkin cap applied to amounts provided for security for costs.
5. If the position were otherwise a funder whose sole contribution was to provide money for security for costs, without which the action would not have continued, would be in the happy position of facing no possible exposure under section 51; whereas those who funded the costs would bear that burden (alone). This would be the position even though, had the claim succeeded, the security for costs provider would have a right to share in the proceeds increased by a percentage reflecting what he had contributed in respect of security. In effect such a provider would have, so far as exposure to an order under section 51 was concerned, a “free ride”, on the back of those financing the costs. This could not be just and cannot be right”.

“APPORTIONMENT” OF COSTS

The judge then went on to carry out an assessment of the additional costs liability of each funder, considering issues such as the timing of the contribution and liability of each funder to pay.

EARLIER JUDGMENTS

• The first judgment on liability is available here  (For an interesting assessment of the witnesses and expert witnesses in a case see paragraphs 54 onwards).
• The judgment on costs is here  (This in turn contains trenchant criticisms of witnesses and conduct of the action generally).

SEE ALSO

• Third Party Costs Orders: All the Law in one Useful Place