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.

In the long-running Kagazy litigation, that commenced in August 2013, the difficulties of enforcement had triggered a number of satellite proceedings, particularly concerning the rights of the funder, Harbour, and the position of the Kazakhstan subsidiary (KK JSC) that was in a form of insolvency in Kazakhstan. Regrettably, Harbour was now the claimant in its own litigation. The case is an uncomfortable read, giving the Court an opportunity to conduct a detailed analysis on a funder’s contractual agreement and also its internal workings and discussions.

The case comes out of an underlying claim which had led to an award of damages of $152m in favour of Singularis. It concerns a funder’s attempt to increase its recovery consequent upon the successful claim and involved having a good look at the fine print of the funding agreement.

This case concerns the extent of the duties (if any) owed by solicitors who conduct funded litigation to those who provide the litigation funding. It is an important case because the funding agreements regularly include references to how solicitors are to deal with funders and yet ultimate control of the litigation always remains with the solicitors.

Litigation funders have undeniably fuelled the rise in competition litigation. The first case to reach the certification hearing was the Merricks case which was a collective action against Mastercard. It has almost single-handedly chartered the course for claims in the Competition Appeal Tribunal.

Whilst only a couple of years after the disasters of Excalibur, following this case litigation funders began to lick their lips and look seriously into commercial arbitration. The reason was that the Court held in this case that a costs order could include the funding costs of an arbitration.