Class actions against financial institutions: impact of High Court decision to order security for costs against a litigation funder

04 March, 2020
In a recent decision which will be welcomed by defendants to funded group litigation, including financial institutions, the High Court has ordered security for costs against a commercial litigation funder in Rowe v Ingenious Media Holdings PLC [2020] EWHC 235 (Ch). The decision follows the court’s approach to security applications against litigation funders in the RBS Rights … Read more

Court of Appeal confirms funders’ adverse costs liability not limited to amount of funding provided: Arkin “cap” not a binding rule

25 February, 2020
A decision handed down by the Court of Appeal today has dismissed the suggestion that there is a fixed limit on a commercial litigation funder’s liability for the other side’s costs when a claim it has funded fails: Chapelgate Master Fund Opportunity Ltd v Money [2020] EWCA Civ 246. This is a significant decision and represents … Read more

High Court declines to impose costs sanctions for refusal to mediate

02 November, 2012
In ADS Aerospace Limited v EMS Global Tracking Limited [2012] EWHC 2904 (TCC), Mr Justice Akenhead sitting in the Technology and Construction Courtheld that a successful party was not unreasonable to refuse mediation and should not be penalised in costs on that basis. The judge’s approach was similar to the Court of Appeal in Swain Mason v Mills … Read more

Part 36 offers in context of counterclaims and negative declarations

30 October, 2012
A recent High Court judgment highlights the scope for confusion in applying Part 36 in a case where the formal roles of claimant and defendant do not reflect the reality of who is seeking a (greater) remedy in financial terms: The Procter & Gamble Company v Svenska Cellulosa Aktiebolaget SCA and another[2012] EWHC 2839 (Ch). The Civil Procedure Rule Committee is … Read more

50% cap on contingency fees for commercial cases

04 October, 2012
The government has given further details of its plans to introduce contingency fees, or “damages based agreements” (DBAs), for civil litigation. It has said that in non-personal injury claims (excluding employment tribunal cases) there will be a 50% cap on the amount of damages that can be taken as a contingency fee (see the new webpage launched … Read more

Costs awarded against claimant who failed to beat non-Part 36 offer

14 September, 2012
A recent High Court decision illustrates that a defendant’s offer to settle made outside the Part 36 regime may lead to a similar result as a Part 36 offer, although it will not carry automatic costs consequences: Brit Inns Limited (in liquidation) v BDW Trading Limited [2012] EWHC 2489 (TCC). Claimants on the receiving end of such … Read more

Part 36: difficulties in split trials

10 July, 2012
A recent High Court decision has highlighted difficulties arising from the application of Part 36 in the context of split trials, or trials of preliminary issues: Ted Baker Plc v Axa Insurance UK Plc [2012] EWHC 1779 (Comm). Under CPR 36.13 the fact that a Part 36 offer has been made must not be communicated to the trial judge “until the case … Read more

Costs consequences of settlement orders made outside Part 36

26 June, 2012
The Court of Appeal has held that the court was not entitled to apply the Part 36 costs consequences “by analogy” to award indemnity costs and enhanced interest where a party failed to beat an opponent’s settlement offer which was not made under Part 36: F & C Alternative Investments (Holdings) Limited & Ors v Barthelemy … Read more