Toorani v Toorani [2019] JRC 023
This Jersey case related to the application to discharge a freezing order that had been obtained in support of English proceedings. At issue was a shareholding in a private company that had been sold, with the Court’s consent, with the proceeds (c £8m) being held in Court. One of the grounds for seeking the discharge of the injunction was that the claimants had failed to inform the Court that they reuired litigation funding, and ATE, and so the issuing of proceedings was contingent on those events. The consequence was a delay in the issuing of proceedings. The Court accepted that there was no express requirement to notify a court considering the grant of an interim injunction about the arrangements made by claimants for their litigation funding. However, the Court stated, clearly if there was a funding question which may impinge upon the timing of a step, in this case the issue of English proceedings, which the injunction was sought to underpin, then that would be a material consideration that should be brought to the attention of the Court. It followed the Court did consider that there was a material non-disclosure.
In the event, this error did not cause the Court to reconsider the grant of relief, but the case makes the point that litigation funding arrangements may well need to be introduced into evidence at different stages of the litigation process. In turn, this means that the arrangements with the litigation funder need to be comprehensive and there needs to be a sufficient relationship of trust and confidence to ensure that maximum cooperation is provided. This should not be an issue for a litigation funder because of the alignment of interest. Where it will become an issue is if the claimant has omitted to tell the litigation funder about the possibility. This is why the litigation funding agreement sets out a number of obligations that are designed to ensure that the claimant always keeps the litigation funder aware as to what is going on in the litigation.