This was an appeal against a Collective Proceedigs Order (CPO), granted by the CAT, and provided the Court of Appeal with the opportunity to outline the law as it pertained to “opt in” or “opt out” claims and the role, if any, that litigation funding played in the exercise of the Court’s discretion.

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.

The short point in this case that is of interest to litigation funding is the revisting of the principles involved in awarding funding costs in arbitration proceedings.

This case represents one of a number of funder-backed cases that have reached the Supreme Court, in itself a development of concern to funders. A litigation funder never wishes to see a case it funds having to be litigated all the way to the highest Court, but it is often the price to be paid for funding claims that are novel and potentially hugely significant and profitable.

This case concerned the costs consequences of a claim, financed via DBA and ATE arrangements, being unsuccessful and yet being litigated in such a way as to cause the defendant to incur unnecessary legal cost.

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.

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 case concerned the important point as to whether funding agreements entered into with claimants by third parties who play no part in the conduct of the litigation, but whose remuneration is fixed as a share of the damages recovered by the client, are damages-based agreements (DBAs) within the meaning of the relevant legislation. The consequences of a positive finding would be that most agreements would be unenforceable.

Although this is case does not involve a litigation funder, it is an important case in relation to litigation funding via Damages Based Agreements (DBAs). For a considerable period of time, solicitors were concerned about DBAs because they appeared very much to be all or nothing.