The Third Party Litigation Funding Law Review: United Kingdom - England & Wales

Market overview

The third party funding (TPF) industry continues to flourish in England and Wales, with more participants than ever and, as a result of self-regulation and increased client support, it has shed the stigma of yesteryear. According to a study undertaken by law firm Reynolds Porter Chamberlain, the size of the UK litigation funding market has doubled over the past three years with the pipeline of court cases and cash held by litigation funders in the country now in excess of £2 billion. The global litigation funding investment market is also expected to reach US$13 billion in 2021, whilst 89 per cent of 250 global institutional investors expect to be impacted in respect of claims that are funded.2

It is, therefore, clear that the UK has embraced the concept of TPF and this is confirmed by further law firms entering the litigation funding market such as Mischon de Reya's new venture, MDR Solutions I, with Harbour Litigation Funding and US law firm's Willkie Farr's recent deal with Longford Capital Management. These firms are seeking to provide their clients with alternative ways to manage their legal expenditure. Over recent years, we have also seen the rise of the alternative business structure (ABS), allowing external investment and for non-lawyers to have a financial stake in a law firm. In this regard, PCB Litigation LLP opted for the ABS structure, to facilitate an equity stake from funder Burford. RBG (the listed parent group of London law firm, Rosenblatt) also owns a litigation funder, Lionfish.

Without TPF a number of high-profile claims that have attracted much publicity from the general press may not have been pursued. By way of example, the general press have dedicated a number of pages reporting on the outcome of the various hearings that have arisen from the Akhmedova v. Akhmedov proceedings and the defendant's attempts to avoid enforcement of a monetary award, while the way that TPF can assist those claimants who are unable to bring cases was highlighted by a funder backing the 39 sub-postmasters whose criminal convictions were quashed this year after a long-running case. In the Competition Appeal Tribunal (CAT), TPF has been instrumental in facilitating the certification of opt-out representative actions brought on behalf of consumers3 – ushering in a new era for 'class actions' in the jurisdiction.

As detailed below, however, the adverse costs regime in this jurisdiction presents a significant risk to claimants and funders alike, as was illustrated by the much-cited Excalibur case,4 where inexperienced funders were found jointly and severally liable for adverse indemnity costs to the tune of £32 million. The Arkin cap was applied,5 but included in it was the £17 million provided to Excalibur to enable it to provide security for costs, which the judge decided was an investment in the claim, akin to the money provided to pay the claimant's costs. Further clarity has also been provided by the Court regarding applications for security for costs, against a claimant who is receiving TPF.

All these factors are relevant to the commercial risk assessment performed by the funder and are invariably priced into the decision on whether to proceed made by the claimant, who wants to hedge his or her risk, and the funder, who wants to share in the win.

Legal and regulatory framework

i The Association of Litigation Funders

The market in England and Wales is largely dominated by the Association of Litigation Funders' (ALF) members – Augusta, Asertis, Balance Legal Capital, Burford Capital, Harbour, Innsworth, Omni Bridgeway, Orchard Global Asset Management, Redress Solutions, Therium and Woodsford Litigation Funding.6 Outside the ALF, other well-known names in the market include Bench Walk Advisors, Litigation Capital Management and Manolete. Additionally, certain family offices and global private equity firms and hedge funds have TPF divisions, including Fortress Investment Group, who recently announced they were integrating long-time ALF member, Vannin Capital, into their legal assets business following their acquisition of Vannin in 2019.

It should be noted that a number of the judgments that have taken issue with a funder's approach or the litigation funding agreement have concerned non-ALF members.

ii A historical perspective

Historically, TPF was not allowed on the public policy ground that third party involvement could discredit the purity of justice on the basis that the third party, tempted by potential personal gain, could manipulate or manufacture evidence or inflate damages. TPF in England and Wales has developed against the backdrop of the modernisation of the common law principles of maintenance and champerty, the scope of which is now limited through statutory amendment and case law.7 For a funding arrangement to now amount to maintenance or champerty, it would have to contain a degree of impropriety such as 'wanton and officious' meddling, disproportionate control or profit, or a clear tendency to corrupt justice. Various Court of Appeal decisions from 2002 and 20058 made it clear that properly provided TPF would not offend maintenance and champerty rules, which, followed by Lord Jackson's influential costs review, cemented the position.

iii Regulation in England and Wales

The ALF is the independent body appointed by the Ministry of Justice to deliver self-regulation of litigation funding in England and Wales. The ALF's stated aim is to ensure best practice and ethical behaviour among litigation funders, working to improve the use and application of litigation funding as part of the rational management of financial risk in dispute resolution and actively shaping the law and regulation of TPF.

The current English legal framework consists of the Code of Conduct for Litigation Funders (the ALF Code), its supervision by the ALF and periodic judicial oversight of funding arrangements and agreements, all of which are considered below. Copies of the ALF Code and the ALF's independent complaints procedure can be found on its website.9

iv The ALF code

The Code of Conduct for Litigation Funders in England and Wales was first published by the Civil Justice Council (an agency of the UK's Ministry of Justice) in November 2011, to address the concerns around what was then a new industry. The Code delivered on the Jackson reports' recommendation for self-regulation of TPF and a desire to see 'a fair balance' between the interests of funder and funded client. The Code was subsequently revised and updated first in 2014 and again in 2016.

The ALF Code provides various protections to litigants who contract with the ALF's funder members and it has received judicial endorsement, most recently in the CAT.10 The ALF Code requires funders to:

  1. maintain adequate financial resources to meet their funding obligations. All funder members of the ALF must have a minimum of £5 million of capital and are verified by a third party as able to cover their liabilities for 36 months;
  2. take reasonable steps to ensure that the funded party shall have received independent advice on the terms of the litigation funding agreement (LFA);
  3. not take any steps that cause or are likely to cause the funded party's lawyers to act in breach of their professional duties;
  4. not seek to influence the funded party's lawyers to cede control or conduct of the dispute to the funder;
  5. not include in any LFA a right to terminate the LFA at the pure discretion of the funder (as this is seen as a potential shortcut to control of the claim);
  6. behave reasonably in exercising rights to terminate for material breach of the LFA by the funded party or because the claim is no longer viable, if such rights are included in the LFA. This is achieved through a mechanism in the LFA, referring such a decision to an independent QC for a binding opinion; and
  7. in relation to approval of settlements, the LFA must state whether (and if so, how) the funder may provide input to the funded party's decisions in relation to settlements. Funders will include a right to be consulted about any settlement opportunities that may arise during a funded case to ensure the claim is being conducted in an economically rational manner. In the event of a dispute about settlement, an independent QC may give a binding opinion.

Structuring the agreement

i The litigation funding agreement

The essence of most LFAs is the funder's promise to pay the claimant's legal costs in exchange for a share in the proceeds, should the claimant win. Conditions to the funding will be set out in the LFA, including obtaining an insurance policy to cover adverse costs and obtaining the necessary corporate authorisations from the claimant. Both parties give undertakings to the other; in the claimant's case that it has obtained independent advice on the funding documents and as to the veracity of information it has provided on applying for funding. The claimant also undertakes to devote the necessary time and resources in pursuing the claim in good faith. The funder agrees to pay the claimant's legal costs in accordance with the agreed budget (ordinarily in the form of a Precedent H appended to the LFA).

An LFA will set out the order of payments (also known as the 'waterfall') on a successful outcome between the funder, claimant and, depending on the circumstances of the case, the after-the-event (ATE) insurer and lawyers instructed on a contingent fee agreement. The waterfall can also be set out in a priorities deed.

There may be a need for further collateral documents. The circumstances of some funding transactions may require a creditors' and shareholders' standstill agreement or, if the funded party is a corporate, the funder may wish to take security over the proceeds of the claim, bearing in mind that the transaction is non-recourse other than to the proceeds. This type of security has come to particular prominence in the wake of covid-19 and the ensuing financial turbulence that corporates face (beyond the litigation) during the lifetime of their claim.

ii Representative actions

Beyond the considerations in a 'typical' LFA, a growing body of jurisprudence on third party funding issues is emerging from the collective actions (class actions) regime in the CAT, especially in the context of opt-out claims. These issues have come to the fore as defendants have attacked LFAs in an attempt to undermine the class certification process. These attempts have largely been unfruitful, in part because funders have been allowed to amend the LFA following guidance from the CAT in response to arguments brought by defendants. Nonetheless, the jurisprudence highlights specific areas that may influence both the terms and conditions a funder includes in its LFA, as well as potentially the corporate structure through which a funder provides the funds. More fundamentally, the jurisprudence on these issues underlines the role that the CAT plays in determining what are appropriate funding terms and structures, regardless of what a funder may have agreed with a prospective class representative. In particular, the CAT has considered issues such as the priority of payments (vis-a-vis the funder and the underlying class members), the adequacy of a funder's funds and terms that might give rise to a conflict of interest between a class representative's contractual obligations to the funder and its primary obligations to the underlying class.

With respect to the priority of payments, the CAT has ruled on where a funder's return on investment should sit in the waterfall of payments upon success. While cash waterfalls in collective action claims can still be agreed between the funder and other parties who may be entitled to some contingent fee (e.g., lawyers and ATE insurers), this cannot be to the detriment of class members. Funders must take care to not impose obligations on the class representative to pay a share of the proceeds to the funder before distribution to interested class members has taken place.11 A similar principle has been adopted in the EU's forthcoming Collective Redress Directive for consumers and it will be interesting to see whether this has any influence on funding considerations for the courts in the current crop of representative actions currently being tested outside the CAT, in the High Court.12

In the Trucks litigation, the CAT endorsed both the ALF and the ALF Code; in particular, as an objective basis for ALF-member funders to demonstrate their ability to meet their financial commitments under an LFA (although the different corporate structures utilised by the two funders in that case (Therium and Calunius) raised different considerations for the CAT on this point). It is understood that in subsequent opt-out claims funded by non-ALF members, the funders have nonetheless agreed to comply with the ALF Code in their LFAs.13

More recently, the CAT has considered LFA terms that create potential areas for conflict such as settlement and termination provisions. Typically, LFAs include an alternate dispute resolution mechanism – such as an independent QC opinion – as a means of resolving disagreement between a claimant and a funder in respect of settlement. In the most recent Merricks v. Mastercard judgment, the CAT has stated that it was 'satisfactory' to have a QC opinion on the basis that it would not be binding on the class representative.14 The CAT also considered the suitability of termination provisions in the same case, concluding that it would be acceptable for the funder to have the right to terminate in specific circumstances – provided that any decision to terminate was based on independent legal and expert advice.

Another consideration for a funder is the proactive use of redactions and applications for confidentiality rings, to keep aspects of the LFA confidential. In contrast to LFAs used outside the CAT's collective action regime, where disclosure of the LFA terms is limited (as discussed below), a class representative in a proposed collective action needs to file a copy of the LFA at the CAT as part of the application for a collective proceedings order. Several LFAs in collective proceedings to date have been heavily redacted, of which the CAT has been critical.

Disclosure

Inevitably a funder's assessment of a claim involves significant disclosure of documents to the funder by the instructed legal team, including documents covered by legal advice or litigation privilege. The cloak of privilege enables a party to withhold potentially sensitive and commercial material from its opponent and the court. For all parties, it is essential to ensure that disclosure to a funder does not cause the loss of the protection afforded by any privileged status.

There are principles established in this area, which assure lawyers and claimants that privilege is preserved. If documents are shared on an expressly confidential basis, this will either preserve privilege entirely or will be construed as a strictly limited waiver for the specific purpose of securing funding. Alternatively, a claimant can most likely rely on common interest privilege to preserve rights of this kind. Common interest privilege arises where a person confidentially discloses a document to a third party in recognition of an interest they share in its subject matter or in litigation in connection with which the document was produced.

While there are robust authorities confirming the principle that where a party shares a privileged document with a third party in confidence that party does not lose privilege, sharing of documents with a funder is done under a non-disclosure agreement, as well as pursuant to confidentiality provisions in the LFA.

The fact of the existence of an LFA and the identity of the funder will never in themselves be privileged information, although, subject to what was said earlier about the effect of the Rules of the Competition Appeals Tribunal 2015 (the CAT Rules 2015) on these issues, the detailed terms of the LFA will almost certainly include much content that would conventionally be regarded as privileged.

There is no clear requirement under the Civil Procedure Rules nor any statutory requirement to notify other parties of the fact that a claimant is funded. It may occasionally be possible for an opponent to seek an order for the disclosure of the identity of the funder if the opponent can satisfy the court that the claimant is funded and there is an arguable application for a non-party costs order, which would be made but for the uncertainty of the target. In practice, disclosure of the funder may also be granted when a security for costs application is being considered, irrespective of whether there is a pre-existing costs order in the proceedings15 and despite the nature and extent of the adverse costs liability of the funder strictly only being applicable when costs are ordered to be paid.

In arbitration, party appointment of arbitrators can give rise to potential conflicts of interest where an arbitrator has a relationship with a funder involved in the case, which has led to some debate about the disclosure of the existence of funding therein. In arbitration proceedings, the funder has to navigate the particular disclosure requirements of the existing rules of the given institution, be it the ICC, LCIA, SCC, ICSID, UNICITRAL, and so on.

Costs

i The funder's liability for adverse costs

In England and Wales, under Section 51 of the Senior Courts Act 1981, the court has full power to determine by whom and to what extent costs are to be paid. This enables a court to order costs against a provider of TPF where that provider has funded litigation on behalf of the losing party, irrespective of what has been agreed pursuant to the LFA. The early authorities established that the ultimate question is whether in all the circumstances it is just to make a non-party costs order. The Arkin cap,16 which effectively kick-started litigation funding in 2005, was the principle that commercial funders should only be liable to pay the costs of opposing parties to the extent of the funding that they had provided (that is, unless the agreement was champertous). The Court of Appeal considered access to justice would not be achieved if funders were deterred by the prospect of unlimited costs liability, but that it would not be fair to successful defendants if costs did not follow the event. The Arkin cap has since been the subject of considerable debate, with some considering the solution overgenerous to commercial funders.17

As mentioned above in Excalibur, Lord Justice Tomlinson ruled that payments to the claimants towards their security for costs liability were a relevant expense when considering the extent of a non-party costs order. He declined, however, to rule on whether the adverse costs consequences of any funder's insurance arrangements for security for costs should be measured by their value (e.g., the limit of indemnity under an ATE policy) or by their costs (the premium paid). The Court of Appeal judgment also established that (1) a funder will be required to contribute to the winning defendant's costs on the same basis as the claimant, be it standard or indemnity; and (2) a non-party costs order could extend to a party unnamed in the LFA, provided that party stood to benefit in the event of success.

In Davey,18 the High Court disapplied the cap and provided useful commentary. When the claimant was ordered and unable to pay adverse costs on an indemnity basis of £7.5 million, the court made a non-party costs order against the funder. The funder sought to rely on the Arkin cap to reduce its liability to its investment (£1.3 million). In refusing to do so, Justice Snowden exercised his general discretion as to costs under Section 51 of the Senior Courts Act 1981, with several considerations for TPFs:

  1. The funder's involvement was as a self-interested commercial investor. During the course of proceedings, it had halved its investment but maintained the same share of the proceeds. The Court looked at not only how much the funder had invested, but also how much it stood to gain.
  2. The funder was aware the claimant could not meet an adverse costs award of that order, which was to be far in excess of the funder's investment.
  3. The judge refused to hold the funder responsible for costs incurred before the funding agreement was in place.

On appeal by the funder, the decision at first instance was upheld and the decision not to apply the Arkin cap was confirmed.19 Davey emphasised the need for adequate adverse costs protection for both claimants and funders because if sufficient ATE insurance is in place to cover the adverse costs risks then defendants do not need to seek to recover their costs from the funder.

In Laser Trust v. CFL Finance Ltd [2021] EWHC 1404 (Ch), the High Court also exercised its discretion to grant a third-party costs order against the funder. While the Court stated that the discretion to order a non-party to pay costs will generally not be exercised against a pure funder it held that as the funding agreement gave the funder 'a considerable degree of' control over the litigation it was appropriate to make a costs order in those circumstances with the Arkin cap also not applying.

In arbitration, it is generally taken that an arbitral tribunal lacks jurisdiction to issue a costs order against a funder of the arbitration. This is because only the parties to the dispute being arbitrated are within the jurisdiction of the tribunal, by virtue of the contract or through the terms of a treaty. This leads many respondents to arbitration to make applications for security for costs.

ii The question of security for costs

In the High Court, payment into court or provision of a bond or guarantee or an insurance policy can be ordered against a claimant as security for an opponent's legal costs. An order will be made if the Court determines that in the circumstances it is just to make such an order, the claimant is resident out of the jurisdiction or there is any other reason to believe that the claimant, wherever situated, will be unable to pay the defendant's costs if so ordered.

In the case of an impecunious or insolvent claimant, an adverse costs insurance policy with a sufficient level of indemnity is often advanced in defence. Whether this is adequate is a developing area of the law. The governing principle taken from Premier Motorauctions v. PwC and another20 is that resolution of these issues is fact-sensitive. The extent of the insurer's right to avoid or otherwise terminate the policy is a focus of these developments, which has led to a requirement for suitable anti-avoidance endorsements from insurers or a stand-alone deed of indemnity from the insurer to the defendant, or both of these.

These principles are subjected to an interesting practical analysis by the President of the CAT at paragraphs 79–109 in his judgment in the Trucks cartel case referred to above.

The Court can also make an order for security for costs against a litigation funder pursuant to CPR 25.14 and Section 51 of the Senior Courts Act 1981. In order to do so the applicant needs to demonstrate to the Court that in all the circumstances it is just to make such an order and that the person against whom the order is sought has contributed (or agreed to contribute) to the claimant's costs in return for a share of any money or property that the claimant may recover in the proceedings.

In this regard, a security for costs application against a TPF provider was successful against Hunnewell BVI in RBS Rights Issue Litigation.21 Here the judge listed the factors to be taken into account when deciding whether security for costs should be ordered against a TPF provider. These included whether there was a real risk of non-payment by the funder (as was the case here, on account of one of the funders' perceived 'deliberate reticence'), or whether the motivations were commercial or altruistic. In this case, the judge also considered whether the defendants ought to give a cross-undertaking to pay the claimants' costs of posting security, which it was determined should not be considered exceptional.

The circumstances in which TPF providers may be ordered to provide security for costs was explored further in the Ingenius22 litigation, which were claims brought by several hundred claimants against various defendants to recover investment losses. The defendants made an application for security for costs against the funder in respect of both claimants it was funding and those it was not. Unsurprisingly, the application did not get much traction insofar as the self-funded claimants were concerned. Given the nature and seriousness of the wide-ranging allegations of fraud in the case, when assessing the level of security to be awarded, the judge factored in the increased prospect of costs being awarded on an indemnity basis. No financial information about the funder was put in evidence and it was understood that the funder would have to call on its investor to contribute. That there were some wealthy claimants among the group did not mitigate the risk of the defendants failing to get paid. As well as having four ATE policies in place, the funder had also provided a contractual indemnity to a set of claimants. The argument that a combination of the wealthy claimants' resources and the ATE cover would have covered the claimants' potential cost liability did not stick, as the ATE policies were not designed as security for costs and there were concerns they would not respond. In addition, the ATE policy contained a provision whereby equivalent proceeds from the policy were to be held on trust by the claimants for the funder if the funder was required to give security. So in circumstances where the court ordered the funder to cover any ATE shortfall, this could be recovered from the claimants' ATE proceeds, thereby reducing the overall cover available for the defendants' costs.

The judge resolved to attribute percentage values of the relevant policies as security and also allowed the full value of the funder's indemnity, with the outcome being that the funder was ordered to provide approximately £4 million of security. Also of note to TPFs was the court's decision not to order a cross-undertaking from the defendants for any loss the claimants would suffer on a successful outcome as a result of the increase in committed funds because of the security for costs order against the funder. The judge took the view that it was simply a matter of reallocation of the proceeds under the LFA – between the claimants and funder.

Issues regarding whether the applicant for security for costs must provide a cross-undertaking were appealed in Rowe and others v. Ingenious Media Holdings plc and others.23 The Court of Appeal held that only in 'rare and exceptional' cases should the court order the applicant to give a cross-undertaking in damages in the claimant's favour, particularly where the claimants have TPF. The Court stated that previous authorities24 where cross-undertakings were required should no longer be followed. In his ruling, Lord Justice Popplewell stated: 'litigation funders ought to be properly capitalised, in order to be able to meet an adverse costs order if the claim fails. They should therefore be in a position to defeat any application for an order that security be provided by demonstrating an ability to meet an adverse costs order. . . . . It follows that a properly run commercial funder should rarely if ever need to be ordered to put up security'.

In arbitration, applications for security for costs are generally decided on the basis of the party's impecuniosity or its inability to pay if costs were to be awarded against it at the conclusion of the proceedings. The claimant can then produce evidence of its funding arrangement and the tribunal will focus on the funder's right to terminate under the LFA and its obligation to cover adverse costs, with disclosure orders generally limited to those provisions.

If the tribunal decide security for costs should be granted, this can be done by way of a funder indemnity, ATE policy or occasionally by bank guarantee. The defendant will normally be required to pay the costs incurred by the funded claimant in complying with the security, if the claimant eventually wins.

The year in review

The continual rise of TPF in England and Wales means that there have been a number of judgments directly dealing with funding issues.

The Arkin cap has been diminished, and it will no longer be applied automatically and is now likely to be limited to cases where a funder has provided finance for only a limited aspect of the case.25 In Ingenius, the Court of Appeal's decision confirms that cross-undertakings will rarely be granted.

The central role of TPF in financing collective actions in the CAT has continued to provide further opportunity for judicial scrutiny and commentary on funding terms and structures. With several claims financed by different funders awaiting judgment in their CPO applications, there is likely to be further guidance from the CAT in the coming months. Of particular interest will be any decisions reached in the fiercely contested carriage dispute in the FX litigation, during which the CAT compared and contrasted the different funding and ATE arrangements of the two competing class representatives.

A common thread throughout these cases is the courts' emphasis on the individual context of a given case. The TPF funding industry has also received considerable encouragement from the judiciary, with Justice Knowles in Akhmedova v. Akhmedov urging caution against 'undesirable satellite litigation to investigate funding arrangements in circumstances where the claim is bona fide and the inquiry into funding arrangements would afford no defence to the claim'. This case serves as a reminder that where a claim is pursued with litigation funding advanced in accordance with the ALF Code, there is limited scope for a defendant to complain or seek to obtain the details of the funding arrangement.26

In the same vein, the CAT's encouraging commentary on the ALF Code in Trucks still stands, with the defendants being refused permission to appeal in that case.27

Conclusions and outlook

The TPF market in England and Wales continues to expand and evolve, with no shortage of well-resourced investors enticed by the increasingly convincing record of non-correlating high returns for those who are willing to play the longer game and risk the losses, particularly within the backdrop of continual low interest rates.

The range and sophistication of funding products and structures continues to broaden, and the increased awareness of and use of TPF has brought (and will continue to bring) greater judicial and public scrutiny of funding arrangements. Litigation funding is no longer solely about single case funding, but its ambit is far more wide reaching, with portfolio funding, the funding of law firms, case assignments or acquisitions and more. TPF is now an established feature of the litigation landscape in this jurisdiction, and the global pandemic does not appear to have reduced demand for it and, if anything, has led to an increase.

Footnotes

1 Simon Latham and Glyn Rees are investment managers at Augusta Ventures.

2 Research conducted by FTI Consulting and set out in an article titled 'The Decade of Disputes and the impact of litigation funding'.

3 See Walter Hugh Merricks CBE v. Mastercard et al [2021] CAT 28, and Justin Le Patourel v. BT Group PLC [2021] CAT 30.

4 Excalibur Ventures LLC v. Texas Keystone Inc [2017] 1 WLR 2221 (CA).

5 Arkin v. Borchard Lines Ltd and others [2005] EWCA Civ 655.

6 Calunius is also a funder member of the ALF but is no longer investing in new cases.

7 'From Barretry, Maintenance and Champerty to Litigation Funding', https://www.supremecourt.uk/docs/speech-130508.pdf.

8 Including R (on the application of Factortame and others) v. Secretary of State for Transport, Environment and the Regions (No. 2) [2002] EWCA Civ 932 and Arkin v. Borchard Lines Ltd & Others [2005] EWCA Civ 655).

10 UK Trucks Claim Limited v. Fiat Chrysler Automobiles NV and Others and Road Haulage Association Limited v. Man SE and Others [2019] CAT 26.

11 Merricks v. Mastercard Incorporated & Ors [2017] CAT 16.

12 Richard Lloyd is bringing a US-style (opt-out) class action against Google in the English courts, relying on the representative claims procedure set out in Civil Procedure Rule (CPR) 19.6. He brings his claim on behalf of more than 4 million Apple iPhone users for data breaches: Lloyd v. Google LLC [2019] EWCA Civ 1599. YouTube is also facing a representative action brought in the High Court for allegedly breaching the privacy and data rights of under-13s in the UK.

13 'First Witness Statement of Phillip Gwyn James Evans' in Philip Evans v. Barclays Bank Plc and Others, https://www.fxclaimuk.com/claim-documents/.

14 Walter Hugh Merricks CBE v. Mastercard et al [2021] CAT 28,

15 Re Hellas Telecommunications (Luxembourg) [2017] EWHC 3465 (Ch).

16 Arkin v. Borchard Lines Ltd and others [2005] EWCA Civ 655.

17 Sir Rupert Jackson recommended in his Review of Civil Litigation Costs in 2009 that litigation funders should be potentially liable for the full amount of adverse costs without limitation.

18 Davey v. Money [2019] EWHC 997 (Ch).

19 ChapelGate Credit Opportunity Master Fund Limited v. Money and others [2020] EWCA Civ 246 (Chapelgate was the commercial funder in the Davey case who appealed against an order holding it liable for all of the respondents' costs from the date when the funder entered into its funding agreement with the claimant).

20 Premier Motorauctions v. PwC and another [2017] EWCA Civ 1872.

21 RBS Rights Issue Litigation [2017] EWHC 1217 (Ch).

22 Rowe v. Ingenious Media Holdings PLC & Others [2020] EWHC 235 (Ch).

23 [2021] EWCA Civ 29.

24 Such as RBS Rights Issue Litigation [2017] EWHC 1217.

25 ChapelGate Credit Opportunity Master Fund Limited v. Money and others [2020] EWCA Civ 246.

26 Akhmedova v. Akhmedov [2020] EWHC 1526 (Fam), dated 12 June 2020.

27 UK Trucks Claim Limited v. Fiat Chrysler Automobiles NV and Others and Road Haulage Association Limited v. Man SE and Others [2019] CAT 28.

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