Possibly a lesson in how not to run litigation, the long-running saga that was Excalibur Ventures LLC – v – Texas Keystone Inc. & Others has concluded in the Court of Appeal.
Funded by third parties who in this case stood to make huge profit if the case were won, and run by a claimant with no assets whatsoever, the Court of Appeal has confirmed third party funders are liable for indemnity costs when such costs are awarded against a funded claimant, and for security for costs.
One of the arguments against such an outcome was that this would inhibit access to justice. Such argument was roundly squashed by the Court and quite properly so. Modern litigation may be funded by third party funders more and more but the actions the defendant was forced to take to resist the claims here cost them many millions. It would be wholly unfair if they (and others in a similar position) could not recover what they had to spend defending such a hopeless case.
Reading the judgment of Tomlinson LJ (which is quite wonderful, one to savour and recommended), you have to wonder how on earth this case ever got off the ground...
The litigation was described as gargantuan in scope (an epithet entirely appropriate in the Rabelaisian sense given the vast feast the funders, as we shall see, were set to enjoy had the claim succeeded), involving a five-month trial and 373 trial bundles. It failed on every point and had been run in what was described by Clarke LJ as an ‘egregious’ manner involving unacceptable and aggressive correspondence on the part of solicitors said to be the product of misplaced zeal in the waging of a war of attrition.