Rely on the most comprehensive, up-to-date legal content designed and curated by lawyers for lawyers
Work faster and smarter to improve your drafting productivity without increasing risk
Accelerate the creation and use of high quality and trusted legal documents and forms
Streamline how you manage your legal business with proven tools and processes
Manage risk and compliance in your organisation to reduce your risk profile
Stay up to date and informed with insights from our trusted experts, news and information sources
Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date.
Find up-to-date guidance on points of law and then easily pull up sources to support your advice with Lexis PSL
With over 30 practice areas, we have all bases covered. Find out how we can help
Our trusted tax intelligence solutions, highly-regarded exam training and education materials help guide and tutor Tax professionals
Regulatory, business information and analytics solutions that help professionals make better decisions
A leading provider of software platforms for professional services firms
In-depth analysis, commentary and practical information to help you protect your business
LexisNexis Blogs shed light on topics affecting the legal profession and the issues you're facing
Legal professionals trust us to help navigate change. Find out how we help ensure they exceed expectations
Lex Chat is a LexisNexis current affairs podcast sharing insights on topics for the legal profession
Discuss the latest legal developments, ask questions, and share best practice with other LexisPSL subscribers
Third party funders are set to be liable for indemnity costs awarded against the party they have funded following the judgment of Lord Justice Christopher Clarke in Excalibur Ventures last week.
The court considered that the defendants, who had had a defend a case which failed comprehensively on both the facts and the law, should clearly be recompensed for the costs they had incurred in defending the action. The funders had contributed monies to the claimant both for costs and for security for costs applications. The 2013 costs judgment ordered that the claimant pay the defendant’s costs on an indemnity basis but there was a shortfall of some £4.8 million. The matter came back before the court following the funders being joined as costs defendants to determine whether they should be ordered to pay the shortfall in costs given that it was essentially only due as a consequence of the indemnity costs order. The question for the court was should funders have to pay indemnity costs when they have been hands off in the litigation and they had no involvement with any of the factors listed in the costs judgment which had resulted in the indemnity costs order?
Lord Justice Christopher Clarke made it very clear that they should be liable for the indemnity costs but that his decision to make the third party costs order was not an attempt to penalize the funders but to recompensate the defendant. In making the order he noted:
There is little comfort for third party funders in this judgment and the message to be taken must be that when funding a case, a funder cannot simply bury their head in the sand. Reliance on comments made by the solicitor of the party they are funding will not enable a funder to escape the costs liability. As the judge said in this case, ‘ it is Mr Lemos’s misfortune that the advice he was so confidently given was the polar opposite of what I have decided’.
For those cases in which there is more than funder, it is also important to remember that when determining whether to make a non-party costs order the court will have to determine whether in all the circumstances it is just to make the order. It does not have to be on the basis of joint and several liability as the court has a discretion as to the form of order, the proportion of costs to be made and the quantum of any award (Nelson v Greening  EWCA Civ 1358).
Free trials are only available to individuals based in the UK
* denotes a required field
**Trials are provided to all LexisPSL and LexisLibrary content, excluding Practice Compliance, Practice Management and Risk and Compliance, subscription packages are tailored to your specific needs. To discuss trialling these LexisPSL services please email customer service via our online form. Free trials are only available to individuals based in the UK. We may terminate this trial at any time or decide not to give a trial, for any reason. Trial includes one question to LexisAsk during the length of the trial. See our full terms here.
Access this article and thousands of others like it free by subscribing to our blog.
Read full article
Already a subscriber? Login
Janna is a dispute resolution lawyer. She deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolution lawyers. Janna also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession.
0330 161 1234