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 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.

This case goes back to 2014, and the claimant died unexpectedly in 2019. The application concerned the efforts of the claimant’s solicitors to be substituted as claimant, pursuant to an assignment that the claimant made before he died. The defendant objected to the assignment on the grounds of champerty.

The claimant in this case was a company that built consumer group actions online. It did this by entering into claim purchase agreements whereby it took an assignment of the consumers’ claims. It then aggregated the claims and brought them in its own name. As a business model, it was a model that could be suited to the commercial litigation funding industry. Naturally, therefore, funders were interested in the outcome.

One of the challenges for a litigation funder has been the extent to which it can step into a litigant’s shoes. The law on third parties’ involvement in litigation – which is of course what litigation funding is all about – is complex.