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.

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.

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.

This Jersey case related to the application to discharge a freezing order that had been obtained in support of English proceedings and the extent to which the involvement of litigation funder should be notified to the Court.

The fact that a party is funded can be a positive and a negative. It can certainly lead to tactical battles and satellite issues being ventilated. This is not what a funder would wish for, because funders rarely encourage the litigation to be any wider in scope than is strictly necessary – expansive litigation tends to cost more, and take longer.

This case addresses a key question for both claimant and funder – to what extent can the funding arrangements remain confidential?