A great deal of insolvency litigation is funded simply by non-parties to a claim – for example , with a creditor or an “after the event” (ATE) insurer. Ordinarily this sort of arrangements and their precise conditions are secret and are not required to be completely disclosed to counterparty in litigation. In the recent case of Re Hellas Telecoms (Luxembourg) [2017] EWHC 3465 (ch) (“Hellas”), the court docket considered the degree to which the underlying details of the litigation funders should be disclosed intended for the reasons of a security for costs application.
ATE and litigation funders
Unfavorable costs insurance is frequently utilized to fund insolvency litigation which usually more often than not will take the form of ATE insurance policies. ATE procedures ordinarily cover adverse costs being awarded in favor of the policy holder’s opponent if the policy holder loses in lawsuit. Due to privity of contract, the the policy are often confidential between contracting get-togethers and not disclosable to a counterparty in a lawsuit – the terms that are usually unveiled are the sum of cover and the trigger details at which specific cover can be paid. In many cases, the id of the funders is nondisclosure at all.
Civil Process Rule (“CPR”) 25. 16 – Security for Costs
CPR 25. 13 permits a defendant to get a security for costs buy against a party other than the claimant to litigation. The court could make an buy for to safeguard costs beneath Rule twenty-five. 14 if:
(a) it truly is satisfied, having regard to all the circumstances of the case, that it is simply to make this kind of order, and
(b) one or more of the following conditions applies.
(2) The conditions will be that the person:
(a) provides assigned the justification to the claim for the claimant with a view to staying away from the possibility of a costs purchase being made against him, or perhaps
(b) offers contributed or perhaps agreed to contribute to the claimant’s costs in return for a share of any money or property that this claimant may well recover in the proceedings, and
(c) can be described as person against whom a costs order may be built.
In Hellas, the liquidators of Hellas Telecoms (Luxembourg) had brought says against several respondents. One of many respondents granted an application pertaining to disclosure with the identity with the nonparty funders to the assert and the money arrangements maintaining the a lawsuit. The liquidators argued that there was not any jurisdiction for such disclosure in legislation or underneath the CPR and this such legislation could not always be implied through the power to prize security for costs against a nonparty placed in CPR 25. 18.
The Court disagreed with the liquidators, stating which it possessed a natural power to purchase disclosure from the identity of non-party funders, including the details of the financing arrangements, in order to allow an efficient application intended for security for costs to be made against that nonparty funder. The legal system existed actually in the a shortage of a contemporaneous costs order awarded against the non-party funder.
The Court on top of that held that this had the energy to build a disclosure order so as to make sure that the identification of funders was conserved. This was crucial in instances where, while an purchase could be produced under Portion 25. 16 for security for costs, it had not happened at that relevant time and in the end might by no means be made by any means.
Summary
This case demonstrates that any party using third party a lawsuit funding should be alive to the risk that disclosure of the identity of funders and the terms of the funding agreements may be bought, even though no security for costs order has been made. Even though the disclosure can be restricted and the party’s identity safeguarded by the court, it is nonetheless a form of disclosure against a party who would not ordinarily expect to have to abide by a disclosure order.
