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The Competition Appeal Tribunal (CAT) has found that a litigation funding agreement that was revised to take account of the Supreme Court’s decision in Paccar (considered in our previous blog post) was not a damages-based agreement (DBA). It was therefore enforceable in the context of an application for an opt-out collective proceedings order: Alex Neill Class Representative … Read more
The government has tabled an amendment to the Digital Markets, Competition and Consumers Bill to allow the use of damages-based agreements (DBAs) with litigation funders in opt-out collective proceedings in the Competition Appeal Tribunal (CAT). DBAs with solicitors and barristers would still be prohibited for such actions. The amendment is a response to the high-profile … Read more
The High Court has refused to order two litigation funders to provide fortification for cross-undertakings in damages given in relation to asset freezing/preservation orders they had obtained over settlement proceeds in funded litigation: Omni Bridgeway (Fund 5) Cayman Invt Ltd v Bugsby Property LLC [2023] EWHC 2755 (Comm). The decision arose in a dispute between … Read more
In this 21st episode of our series of commercial litigation update podcasts, we look at developments relating to litigation funding since the Supreme Court’s dramatic decision in Paccar in late July, as well as brief updates on ADR, pre-action conduct and costs. We also discuss developments relating to Russian sanctioned parties, and the disqualification proceedings … Read more
In what appears to be the first decision to consider the implications of the Supreme Court’s judgment in Paccar Inc v Road Haulage Association Ltd [2023] UKSC 28 (considered in our previous blog post), the High Court has held that there is a “serious issue to be tried” that the element of a litigation funding … Read more
In this 20th episode of our series of commercial litigation update podcasts, we look at the High Court’s decision dismissing ClientEarth’s attempt to bring a derivative action against Shell’s directors, the Supreme Court’s rather dramatic recent decision on litigation funding agreements, a brief update on a development relating to representative actions, some interesting recent contract … Read more
In a judgment handed down this morning, the Supreme Court has held that litigation funding agreements with third parties who play no part in the conduct of litigation, but who are to be paid a share of any damages recovered by the claimant, are “damages-based agreements” (or DBAs) within the meaning of the relevant legislation … Read more
The European Parliament has published a proposed Directive to regulate commercial third party funding within the EU. The proposed Directive will not directly affect proceedings in England and Wales, but will apply to litigation funders based in the UK where they are funding proceedings in the EU. Key recommendations include a provision invalidating a litigation … Read more
The Court of Appeal has confirmed that Damages-Based Agreements (or DBAs) cannot be used by defendants as, under s.58AA of the Courts and Legal Services Act 1990, the agreement must provide for payment to the lawyer if the client “obtains a specified financial benefit” from the litigation: Candey Ltd v Tonstate Group Ltd [2022] EWCA … Read more
