The security for costs orders that were made by the Court in the Ingenious litigation, which had the effect of the funder having to put up a good deal of security, included a cross undertaking in damages, but only in respect of external costs that were incurred by the funder. The issue of the correct approach to cross-undertakings was decided in this case following appeals by both the claimants and the defendants.

This complex hearing involved 6 leading counsel which highlights the costs that were being run up. The claimants sought a cost-sharing order, whilst the defendants sought security for costs.

As had been expected for a number of years, a full-blown challenge was always going to be made to the Arkin cap. This case presented the golden opportunity since it was a case where the defendants, professional office-holders, were successful in defending substantial claims brought against them by Ms Davey who had been funded in her litigation.

The underlying arbitration between Progas and Pakistan was conducted under the UNICTRAL rules. The tribunal issued an award finding against the claimants on causation grounds. It also found against the claimant on numerous other grounds as well. Costs were awarded in the defendant’s favour in the amount of c £8m. The claimant then alleged s68 serious irregularity and issued fresh proceedings in the English Court. The defendant sought security for costs of the s68 proceedings and an order that monies should be paid into Court in respect of the costs of the arbitration.

In very long running Consumer Protection Act proceedings concerning the anti-depressant drug Seroxat, GSK issued an application for security for costs against the claimants’ litigation funder, Managed Legal Solutions (MLS).

Further to the March 2017 decision in the RBS Rights Issue Litigation that opened the door for RBS to ascertain who the funders were (Hunnewell Partners and LNCP), RBS sought security for costs against them.

Group actions appear to be the bread and butter of funders and the interest in collective action has only increased with time. An issue arose in the RBS rights issue litigation as to the circumstances in which the Court may require disclosure of the names of commercial funders, and the details of any ATE insurance, in advance of a threatened application for security for costs when a trial is imminent.

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

This case is often the first experience that lawyers and observers have of litigation funding and it is not a good one.