This was an application by an intervener, a litigation funder, in financial remedy proceedings for disclosure of material and information which was subject to 'without prejudice' privilege. The argument by the litigation funder was that a proposed settlement was constructed so as to mean that the wife could not repay the significant debt to the funder. The funder's status in this litigation derived from the fact that the wife entered into a direct contractual arrangement with it in order to enable her to continue to participate in complex and highly contentious litigation where there was every prospect of an appeal, a rehearing of the financial remedy proceedings, or both. On that basis, the funder was entitled to seek, and secure, party status as an intervener in the financial remedy proceedings when it became aware of the steps which had been taken to conclude a settlement which, on its face at least, had the appearance of defeating it ability to recover its debt. However, the Court was not prepared to provide it with the disclosure that it sought, since it considered that the Court could in any event determine the funder’s application upon other available evidence. A funder was not in some privileged position itself.

This is another, discrete example of how Courts are not prepared to bend over backwards to support the position of litigation funders. Whilst litigation funding is generally considered to be of wide public benefit, particularly in family proceedings, the funders are not entitled to some kind of special treatment. The most that could be done in this case was for the Court to express the hope that the relevant rule committee may consider the position afresh in light of the importance of funding to the system.

http://www.bailii.org/ew/cases/EWFC/HCJ/2021/108.html