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The Commercial Court has refused a challenge to an arbitral award brought on the basis of the tribunal’s award of the costs of third party funding to the successful party, finding that it did not constitute a serious irregularity under s68 of the 1996 Arbitration Act: Tenke Fungurume Mining SA v Katanga Contracting Services SAS … Read more
In a recent decision, the High Court has confirmed that a Damages-Based Agreement, or DBA, will not be enforceable if it purports to entitle the legal representative to be paid a percentage of a benefit retained by a defendant to litigation, as opposed to a sum recovered in respect of the claim: Tonstate Group Ltd … Read more
In this sixth episode of our series of commercial litigation update podcasts, we briefly outline the impact of Brexit on disputes and dispute resolution clauses, focusing on practical points for commercial parties. We also look at some developments on privilege and funding, as well as an update on witness evidence reform, and finally we consider … 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 … Read more
The Court of Appeal has confirmed that a Damages-Based Agreement, or DBA, can include a clause which entitles the legal representative to payment on a time cost basis if the DBA is terminated before the conclusion of the litigation: Zuberi v Lexlaw Ltd [2021] EWCA Civ 16. DBAs, otherwise known as contingency fees, are a … Read more
Damages-based agreements (or DBAs), under which a lawyer can receive an agreed percentage of any damages in the event of success, were introduced to civil litigation in England and Wales in 2013 as part of the Jackson reforms. But the take-up of DBAs has been slow, in large part due to a lack of clarity … Read more
The High Court has handed down judgment on costs issues and an application for permission to appeal, following on from the court’s rejection last year of the claims brought against Lloyds in a shareholder class action relating to its acquisition of HBOS in 2008: Sharp & Ors v Blank & Ors [2020] EWHC 1870 (Ch). … Read more
In this third episode of our series of commercial litigation update podcasts, we look at developments in disclosure and privilege since our February update, as well as some developments relating to costs and funding. This episode is hosted by Anna Pertoldi, who is joined by Maura McIntosh and Ajay Malhotra. Our podcast is available on … Read more
As explained in this previous post, the Court of Appeal has recently dismissed an appeal against a decision which declined to apply the so-called Arkin cap to limit a commercial funder’s liability to the amount of the funding it had provided. The decision confirms that the Arkin cap is not a binding rule, and the court retains a broad discretion … Read more
