In one of the first decisions to consider the application of the so-called Arkin “cap” following the Court of Appeal’s decision in Chapelgate Master Fund Opportunity Ltd v Money [2020] EWCA Civ 246, the High Court has once again made a third party costs order against a litigation funder, and refused to cap that order: Laser … Read more

In a marked shift from previous first instance decisions, the Court of Appeal has provided guidance on the circumstances in which a defendant seeking security for costs may be required to provide a cross-undertaking in damages: Mr Nigel Rowe & Ors v Ingenious Media Holdings & Ors [2021] EWCA Civ 29. The court held that cross-undertakings should … Read more

One of the key features of the commercial litigation landscape in England and Wales is that costs generally follow the event, creating a disincentive for claimants to commence unmeritorious claims given their exposure to the defendant’s legal costs if the claim ultimately fails. This is also true (indeed, potentially even more so) if, as is … Read more

Herbert Smith Freehills LLP have published an article in Butterworths Journal of International Banking and Financial Law on the principal characteristics of third party litigation funding in the securities class action markets in Australia and England and Wales. In Australia, the rise of securities class actions over the last decade has been driven in part … Read more

Mr Justice Norris has now handed down judgment following the consequentials hearing in the landmark Lloyds/HBOS Litigation: Sharp & Ors v Blank & Ors [2020] EWHC 1870 (Ch). Norris J resoundingly refused permission to appeal the judgment on liability and made a number of interesting findings on the adverse costs position of the claimants, and … Read more

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

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

The Court of Appeal has handed down an important judgment holding that complainants who had accepted a Financial Ombudsman Service (“FOS”) determination were barred from bringing court proceedings in relation to the same cause of action under the legal principle of res judicata. In doing so, the Court of Appeal overruled a High Court decision … Read more