In Wall -v- The Royal Bank of Scotland PLC  EWHC 2460 (Comm) (Mr Andrew Baker QC sitting as a High Court Judge) the claimant was ordered to reveal the identity of third party funders.
- The court has power to order a party to disclose the identify of third party funders.
- The exercise of such a power did not breach Article 8 rights.
- On the facts of this case it was appropriate to order disclosure of the third party funders in order that the defendant could consider an application for security for costs against them.
The claimant, as assignee, is bringing an action against the Defendant for £700 million in relation to alleged mis-selling of an interest rate swap. The defendant sought the identity of third party funders who were funding the claimant. The hearing was used as “something of a test case” for whether third party funders can remain anonymous to the defendant and to the court.
This rule allows the court to order security for costs against third party funders.
Security for costs other than from the claimant
(1) The defendant may seek an order against someone other than the claimant, and the court may make an order for security for costs against that person if –
(a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and
(b) one or more of the conditions in paragraph (2) applies.
(2) The conditions are that the person –
(a) has assigned the right to the claim to the claimant with a view to avoiding the possibility of a costs order being made against him; or
(b) has contributed or agreed to contribute to the claimant’s costs in return for a share of any money or property which the claimant may recover in the proceedings; and
is a person against whom a costs order may be made.
(Rule 46.2 makes provision for costs orders against non-parties)
THE POWER TO ORDER DISCLOSURE OF THIRD PARTY FUNDERS
The judge considered the case law that pre-dated CPR 25.14.
The existence now, by contrast, of CPR 25.14 changes the landscape entirely. It provides the power, absent at the time of Abraham, to grant a remedy against third party funders without first establishing a right to costs, that remedy being an order for security for costs necessarily granted (if it is to be of any utility) before a right to costs has been established. It is still the case that identification of the third party funder(s), if any, will not be ordered as an ancillary pre-cursor to an application under s.51(1) until an application under s.51(1) could otherwise be made, which on the authority of Abrahamrequires the defendant to have an established right to costs. But that does not mean that it will not, let alone cannot, be ordered as an ancillary pre-cursor to an application under CPR 25.14 that can otherwise be made before the defendant has such an established right. An application for security for costs under CPR 25.14 can be made, and indeed is only really intended to be made, before, normally long before, establishing the defendant’s right to costs. If it can otherwise properly be made, except that the defendant does not know against whom to make it, then there must be ancillary power, as Sir Donald Rattee said in Reeves, to require the claimant to identify the target. Mr Davies urged that it would be highly unusual (indeed he suggested unique to CPR 25.14) for there to be power in this way to require one side to litigation, in effect, to provide the other side with grounds for making an application under the CPR (if so advised). But Mr Davies’ own explanation shows why, even if that be so, it is not a reason to doubt the power. In the main, powers under the CPR to grant remedies are powers to grant remedies to one party to proceedings against another party to those proceedings. Where there are conditions to be satisfied, then as in Abraham itself, if there is no serious basis for supposing that they are or might be satisfied, the court will not order the putative respondent to an application to fill that void. That would be to allow ‘fishing expeditions’. On the other hand, if there is a serious basis for supposing that they are or might be satisfied, then that is sufficient for an application for the CPR remedy in question to be launched. Nothing more is needed, since the applicant knows against whom the application, ex hypothesi a properly arguable application to issue, should be made.
But this case is not at all about allowing ‘fishing expeditions’, so far as the argument over the court’s powers is concerned. This case starts with the assertion by RBS that, without any potentially circular reliance on Mr Wall’s refusal to provide information voluntarily, there is good reason to believe that Mr Wall has third party funding falling within CPR 25.14(2)(b). If that is the case (which I consider later), then (absent contrary evidence from Mr Wall) the inference to be drawn at this stage is that the grounds stated by the CPR for the existence of the power to grant a remedy by way of security for costs probably do exist. However, subject to a further point raised by Mr Davies, RBS cannot make the application that ex hypothesi CPR 25.14 says it may make in those circumstances, because it does not know against whom that application lies. Mr Wall, however, does know. Inherent in the power to grant the remedy is the power to make ancillary orders to make it effective. To order Mr Wall to identify to RBS the party or parties against whom any CPR 25.14 application will lie, if made, is to do no more than to make such an ancillary order.
EXERCISE OF THE DISCRETION IN THE CURRENT CASE
Having found the court did have a power to order disclosure of the identity of the third party funders the judge then considered whether he should exercise the discretion.
I propose to deal with the facts, and why in my judgment it is appropriate as a matter of discretion to make the order sought, relatively shortly. That is for two reasons. Firstly, as I indicated at the outset, in reality a stand has primarily been taken on whether I have power to grant the order (and on Article 8 both as an element of that and as a basis for objecting to any order being made if there is power to make one), rather than on the merits of the making of an order, at all events on the approach I take to that, as I shall describe shortly. Secondly, I envisage that there will now be an application by RBS under CPR 25.14, unless compliance with the order I now make demonstrates, contrary to my present expectation, that CPR 25.14(2)(b) does not apply after all, or the parties reach some compromise that resolves matters as regards CPR 25.14. Either way, I judge it more seemly that I say no more about the prospective merits of any application under CPR 25.14 than is necessary for present purposes. That does still mean, of course, that I must say something about Mr Davies’ contention that Mr Wall’s ATE insurance arrangements trump all.
I set out in paragraph 8(ii) above how RBS puts this application, on the facts. It seems to me that so long as an application by RBS under CPR 25.14 (if it knew against whom to apply) would be pursued on proper grounds and have a serious prospect of success (as opposed to being speculative or fanciful), then it is a material prejudice to RBS to deprive it of the opportunity to make and pursue that application by allowing it to be kept out of knowing the identity of the proper respondent to it. By contrast, having ruled against Mr Wall as to Article 8, I agree with Mr Mitchell that there is no case raised at all of prejudice to Mr Wall that might have to be balanced against that (see paragraph 9 above).
This litigation is large and complex. It raises for investigation events spanning a period of at least six years. There will be expert evidence from up to five different expert disciplines. RBS estimates that to the conclusion of the trial its costs will exceed £9 million (before VAT). On the evidence put before the court at this stage, Mr Wall appears to be an individual without the means to fund litigation of this magnitude, complexity or expense. With no evidence to the contrary to weigh in the balance, which is the position today, the inference I draw is that Mr Wall must be litigating with the benefit of third party funding. The litigation, although now under Mr Wall’s name, is in pursuit of rights against RBS (if any) not of Mr Wall but of OPG. There is no evidence from which to suppose that anyone would be willing to fund the litigation altruistically. The probability must be – absent, again, contrary evidence to put in the balance – that whoever is funding the litigation is doing so in return for a share in any proceeds.
In the light of the matters summarised in paragraph 38 above, again as the evidence stands before me now, there is every reason to think that Mr Wall will not be in a position himself to discharge the extremely large costs liability he will incur if RBS succeeds at trial. There has been no suggestion that merely identifying his funder(s), so as to allow a full argument as to whether security for costs should be ordered, might stifle the claim.
There is, as it seems to me, a serious argument as to whether Mr Wall’s ATE insurance position will matter, in an application against third party funders under CPR 25.14, even if it would ‘see off’ a security for costs application against a corporate claimant following cases such as Geophysical Service Centre v Dowell Schlumberger (ME) Inc  EWHC 147 (TCC) and NGM Sustainable Developments Ltd v Wallis  EWHC 461 (Ch). On an application against a claimant, the court must balance the defendant’s desire to be paid its costs if it succeeds in the litigation against the fact that an impecunious claimant may be deprived of access to the court if security is required. RBS will submit, says Mr Mitchell, that the position is different in an application against a third party funder buying a stake in the claim or its proceeds: the application is then not against an impecunious claimant seeking to vindicate rights, but against a professional entity seeking to profit from the litigation of others and likely to be well able to secure the defendant’s costs. That seems to me a serious and important argument and RBS should have a proper opportunity to pursue it. Mr Davies suggested that it would be curious for RBS to be in a better position as regards security for costs, arising at least indirectly out of the impecuniosity of Mr Wall as claimant, than it would be in if OPG had sued, as an insolvent corporate claimant. As it presently strikes me, though, Mr Mitchell is not contending for RBS to be better off in that way, at all events if the proper comparison is drawn. The proper comparison is with the position if OPG were litigating in its own name, insolvent but funded such that CPR 25.14(2)(b) applied. RBS would then be in the same position, on its case, as regards security for costs from the funder; and it would be in either the same position, or a better position, as regards security for costs from the claimant, since it could at least apply for security from OPG (whether or not that application would succeed as a matter of discretion), whereas it cannot from Mr Wall.
There is also, as it seems to me, a serious argument – that RBS should have a full opportunity to pursue – as to whether Mr Wall’s ATE insurance arrangements are such as would defeat a security for costs application against a corporate claimant. Those arrangements have been evolving, in the face of RBS’s pursuit of this application and the related threat of an application for security for costs under CPR25.14 if this application first succeeds. But even as they now stand, with improvements (as Mr Wall contends) since this topic was initially raised at the first CMC before Phillips J., in my judgment RBS has serious grounds for contending that they should not be treated as a complete answer to any security for costs application.
In the round, RBS has a proper basis to pursue an application under CPR 25.14 if only they can identify the correct respondent(s) to such an application. The order sought will require Mr Wall to provide information which he has that will enable RBS to identify that respondent or those respondents. There is a serious argument then to be had, on the merits, not between RBS and Mr Wall, although no doubt Mr Wall formally has an interest, but between RBS and the correct respondent(s), once identified, as to whether they should be required to put up security for RBS’s costs. There appears to be a real prospect of success for RBS, I need say no more, on that argument. To deprive RBS of the opportunity to pursue that application would be a material prejudice; there is no suggestion of prejudice to Mr Wall if the current application is granted as a pre-cursor to an application under CPR 25.14, except the suggestion, which I have rejected, that the order sought would impermissibly infringe his Article 8.1 right to respect for his private life. I think the balance overwhelmingly favours the order sought”
ARTICLES AND POSTS ON THIRD PARTY FUNDING
- BLP Funded parties in international arbitration beware: funding arrangement may need to be disclosed to opponent & ….
- Kluwer Arbitration Blog A trend towards mandatory disclosure of third party funding?
- BLP again Another investment tribunal grapples with disclosure of third-party funding information.
- Pinsent Masons Advice Note on Third party funding of litigation
- Law Society Gazette MoJ lifts threshold for naming third-party JR funders.
- International Law Office Court orders disclosure of funding arrangements
A related topic covered on this blog