Court Exercises Discretion On Funder's Costs

In a recent and novel decision, the Commercial Court ruled that where a Claimant had multiple commercial litigation funders, one alone should be jointly and severally liable with the Claimant for the costs of the proceedings, irrespective of other litigation funders' involvement.

The particular litigation funder had had the dominant financial interest in the litigation and had effectively controlled the proceedings through the Litigation Funding Agreement (LFA). The Defendants, by contrast, had not had a choice and were required to incur costs in defending the claim. Applying authorities, Moulder J decided it would be unfair to make the Defendant's recovery of those costs dependent on the pursuit of numerous entities, thereby causing further costs and delay, with an uncertain outcome.