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.

The decision in this case is illustrative of the Court’s approach in relation to innovative attempts to progress collective redress claims. In this case, the attempt was to bring a representative action by a claimant who had the benefit of various assignments of the underlying cause of action.

This is another example of a case where the litigant became the litigation funder. Here, the funder, Therium, appeared in an attempt to head off an application that it pay the costs of the successful defendant on the indemnity basis and that it top up the payment on account that was supposed to have been paid by the claimant.

This case concerns the liquidation of Edengate Homes, and the liquidator’s assignment of a cause of action to a litigation funder. A former director of Edengate, who was going to be the defendant to the claim, sought to set aside the liquidator’s assignment of the claim. At first instance, it was held that the director did not have the necessary locus to bring the claim, and the decision to assign the claim was not perverse.