Bugsby applied for fortification of cross-undertakings in damages which had been provided by the two funders who had obtained injunctive relief in respect of ongoing arbitration proceedings.

The Court dealt with the consequences of applications made by Therium in support of arbitration proceedings brought in respect of settlement monies which Bugsby had received in funded litigation.

The reaction to the Supreme Court’s decision in Paccar  has been swift and diverse. Is it doomsday or is it just a judgment to file away to read on a rainy day? The suggestion that the decision has taken the industry by surprise does not chime with the reality that funders are sophisticated folk who are in the business of predicting outcomes. Anyone who attended the hearing in February will have appreciated the significant risk of an unhelpful decision.

One of the more challenging aspects of competition cases is that they are expensive to litigate. From a funder’s perspective, there are particular risks when two potential cases are vying to be the sole opt-out proceeding. If you back the wrong horse, you could be looking at considerable costs that will be irrecoverable.

Finding, and funding, a viable representative action remains an elusive quest. Although there is only one fundamental requirement (that the representor and all the representees must all have the “same interest”), it has been a struggle to see a claim get off the ground.

In supporting an office holder, a litigation funder fulfils a key role of enabling litigation to be commenced in circumstances where that litigation may not otherwise have been pursued. However, seeking an injunction as part of an intended claim is not without risk. The Court of Appeal has confirmed that a cross undertaking in damages is required – and the default position is that it should be unlimited in scope.

Bondholders in their hundreds have been indicating their support, or authorising proceedings, in respect of the litigation concerning Credit Suisse Group’s (CSG) Additional Tier (AT) 1 capital bonds. Are these claims viable?

A challenging situation is being played out in the US at the moment between funder and claimant. Entities affiliated with Burford Capital agreed to fund the antitrust claims of Sysco Corporation. On 14 December 2022, these affiliates were successful in submitting to an LCIA tribunal that an injunction should be put in place prohibiting Sysco from settling litigation that was the subject of the funding agreement. At first blush, preventing the client from controlling its own litigation appears to be putting the funder very deep in “champerty” waters.