HARBOUR VIEW N e w s a n d O p i n i o n s f r o m T h e H a r b o u r Te a m
Q3 Issue focus… ATE insurance
In this edition of HARBOURVIEW we focus on After The Event (ATE) insurance, and in particular several recent Court decisions of importance concerning ATE. We also provide our usual insight into funding-related issues. CONTENTS v Lawrence – recoverability p3 Coventry of ATE insurance premiums
Irish High Court accepts legality of ATE
sanctioned for failure to p8 Solicitors secure ATE insurance insurance can be sufficient p10 ATE security for costs – a reminder
Non-party costs orders – a guide
HARBOURNEWS… in brief
Litigation Funding Handbook
Coventry v Lawrence – recoverability of ATE insurance premiums The Access to Justice Act 1999 (the 1999 Act) heralded a significant change to civil litigation in this country: it introduced the recoverability of success fees and ATE insurance premiums by way of costs. We look closer at the impact on recoverability of these additional liabilities following the recent Supreme Court decision in Coventry v Lawrence (No2)  UKSC 46. The case of Coventry v Lawrence concerned a claim for nuisance by the appellants, the owners of a residential bungalow, against the occupiers of a stadium some 850 yards away used for speedway and other motor racing. The Supreme Court determined that the respondents were liable to the home owners and ordered that they pay 60% of the appellants’ trial costs, which included a success fee and an ATE insurance premium.
“They give rise to grave concern even if one ignores the success fee and ATE premium. The fact that it can cost two citizens £400,000 (being the base costs) in legal fees and disbursements to establish and enforce their right to live in peace in their home is on any view highly regrettable. The point is reinforced when one takes into account the value of their home, which is less than £300,000… and that there will be further base costs incurred as a result of the four day appeals in the Court of Appeal and this Court.” The base costs, success fee and the ATE premium claimed by the appellants amounted to £1,067,000. The 60% order for costs made by the trial judge meant that the respondents were looking at a costs exposure of £640,000. The respondents argued that the requirement to pay the success fee and ATE premium amounted to a breach of their: • right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR); and/or • right to protection of property under Article 1 of the Protocol to the ECHR.
Herbert Kratky / Shutterstock.com
Lord Neuberger, President of the Supreme Court, expressed concern about the level of costs that had been incurred:
Lord Neuberger indicated that these two arguments were open to be considered by the Supreme Court despite two previous House of Lords decisions. In Callery v Gray  1 WLR 2000, the House of Lords effectively confirmed that, subject to reasonableness, success fees and ATE premiums were recoverable. In Campbell v MGN Ltd (No 2)  1 WLR 3394, the House of Lords held that the 1999 Act costs recovery regime did not infringe Article 10 (Article 10 does not apply in the present case).
However, Lord Neuberger concluded that it would be wrong to decide the point without the UK Government having had the opportunity to address the Supreme Court on this issue. If either of the respondents’ arguments above are correct, then it may be appropriate to grant a declaration of incompatibility. Such an outcome could expose the Government to claims for compensation by those “victims” of the costs system that enabled the recovery of success fees and ATE premiums. Lord Neuberger continued that if the respondents wish to pursue their arguments, the present appeal should be re-listed after appropriate notice has been given to the Attorney-General and the Secretary of State for Justice, following which the parties (including any authorised interveners) must seek to agree issues and the proposed procedure, and the Court will then give directions.
Interestingly, Lord Neuberger noted in his judgment that the costs recovery provisions “are not on their face mandatory, but it seems to me to be arguable that the costs charging and recovery system introduced… simply would not work unless a claimant’s success fee and ATE premium were recoverable in full, irrespective of proportionality, from a defendant who had been ordered to pay costs”. Furthermore, he mentioned that “there may be an argument that, although the outcome of the costs system produces an unattractive result in the present case, its compatibility has to be assessed by reference to the generality of cases…”
Comment It will be noted that there is no decision from the Supreme Court in this case on the recoverability of success fees and ATE premiums. Accordingly, as the law currently stands, success fees and ATE premiums remain recoverable. Furthermore, any application to stay costs proceedings pending a final decision in the Coventry case does not seem justified. If the respondents pursue their arguments in the Coventry case, and further, if the Supreme Court grants a declaration of incompatibility, the appropriate remedy for any “victim” who has had to pay success fees and/or ATE premiums would be to make a claim against the Government.
Irish High Court accepts legality of ATE A recent Irish High Court case considered, in the context of a security for costs application, whether an ATE insurance policy was unlawful in Ireland by reason of the tort of champerty or other analogous policy considerations. The Court held that the policy did not “amount to either maintenance or champerty”. Could this decision act as a platform for a more liberal approach to litigation funding in Ireland? The case of Greenclean Waste Management Limited v Leahy (No2) involved a professional negligence claim by the claimant against the defendant solicitors. The defendant applied for security for costs under Section 390 of the Companies Act 1963. There was no dispute that the claimant was “hopelessly insolvent”, but it sought to rely on the ATE insurance policy it had secured with DAS as adequate security for costs.
Initially the Irish High Court ruled that, subject to DAS giving an undertaking not to invoke a particular clause of the ATE policy, the Court was prepared to treat the existence of the ATE insurance as sufficient security in respect of any costs application which the defendant might make if it was successful in defending the proceedings. For this reason, the Court refused to make the order for security for costs.
‘…the Court was prepared to treat the existence of the ATE insurance as sufficient security in respect of any costs application which the defendant might make if it was successful in defending the proceedings.’
The defendant appealed that decision to the Supreme Court of Ireland, and by an order dated 25 September 2013, the Supreme Court adjourned the appeal on the merits, remitting to the High Court the question as to whether, as a matter of principle, ATE was champertous, illegal or otherwise unenforceable in law. The Supreme Court also made an order joining DAS as a notice party to the proceedings.
The High Court proceeded to evaluate the state of the common law in Ireland, including the fact that, unlike in England and Wales, the scope of the torts of maintenance and champerty had not been directly affected or altered by legislation.
“The only form of third party funding which is, therefore, legitimate in Ireland is one which comes within the exceptions to maintenance and champerty.” The High Court considered the definition of maintenance as the improper provision of support of litigation in which the supporter has no direct or legitimate interest, and champerty as an aggravated form of maintenance where the third party providing litigation support does so in return for a share of the proceeds/damages (in this case the ATE product was a deferred and contingent policy, with the premium payable only on success in the claim).
The High Court pointed out that the torts of maintenance and champerty were first formulated at a time when the legal system was weak, when the independence of the judiciary was not necessarily secure and when the rules ensuring the attendance of witnesses and providing for their protection against attempts to interfere or suborn them were still in their infancy. The High Court referred in particular to the Irish case of Thema International v HSBC  IEHC 357, where Justice Clarke observed: “In Ireland it is unlawful for a party without an interest (or some other legitimate concern including charity) to fund the litigation of another at all and, in particular, it is unlawful to fund litigation in return for a share of the proceeds. The only form of third party funding which is, therefore, legitimate in Ireland is one which comes within the exceptions to maintenance and champerty. Charitable intent, where the funder does not hope to benefit personally, would, of course, take the case outside the third party funder costs order jurisdiction identified in Moorview, for that jurisdiction is confined to persons who fund litigation which they hope will indirectly benefit them in capacities such as shareholders and creditors. That such parties are, even though they not be guilty of maintenance or champerty, exposed to potential orders for costs is clear… However, such parties are
not, in my view, in the same category as professional third party funders who make a commercial decision to “invest” in litigation in the hope of making a profit. After all, if the litigation is well founded then the shareholder or creditor is only getting their due. If an insolvent company has a good cause of action, then the shareholders or creditors who might benefit by any recovery on foot of that cause of action are getting no more than their entitlements. If the proceedings are bona fide progressed, then such parties are simply funding an entity in which they have a legitimate interest in the hope that that entity will be able to pay them monies due (in the case of creditors) or dividends or capital distributions (in the case of shareholders). The law of maintenance and champerty always made a distinction between such parties and professional third party funders. It seems to me that it is appropriate to maintain that distinction.”
“…it should also be acknowledged that ATE may well assist many in securing access to justice in a manner to which they might not otherwise have ready access.”
The High Court noted that ATE is relatively new in Ireland, and then looked at the specific DAS policy in this case, which was deferred with the premium only payable on the claimant’s success in the claim. Mr Justice Hogan in the High Court observed: “While one could not deny… that features of this type of policy may suggest some... form of contingency fee arrangement and may also possibly involve features of champerty (i.e., sharing in the profits of litigation in which the party has no legitimate interest), it should also be acknowledged that ATE may well assist many in securing access to justice in a manner to which they might not otherwise have ready access.” Mr Justice Hogan noted that while the torts of maintenance and champerty were originally formulated in a different legal era, they continue to exist in Ireland and to enjoy a “practical vibrancy”. However, he stated that these torts must be viewed, and, if necessary, modified, in light of modern principles, in particular the constitutional right of access to the Courts.
Mr Justice Gerard Hogan
Mr Justice Hogan acknowledged that the fact that the premium on an ATE insurance policy is normally only payable after a favourable Court decision or settlement might be seen as “simply a disguised method of investing in litigation and recovering a share of the proceeds of the action under the guise of a handsome premium”. However, he noted that it should be borne in mind that ATE insurance serves important needs within the community by facilitating access to justice for persons and entities who might otherwise be denied this. He considered that in this regard ATE insurers provide a legitimate service and cannot be regarded as merely investing in or trafficking in litigation. Accordingly, Mr Justice Hogan concluded that ATE insurance, at least in the form in which it manifested itself in this case, was not on the whole champertous and did not amount to maintenance.
Comment This decision represents an important step forward for the Irish legal system and access to justice generally. Although the Court confirmed that the law still prohibits “trafficking in litigation”, it suggested that the torts of maintenance and champerty are antiquated, and emphasised both the importance of access to justice and the fact that a good ATE insurance policy can provide access to justice whereas otherwise it might be denied to a claimant with a meritorious claim. The same principles of access to justice apply to litigation funding. Lord Neuberger, the President of the Supreme Court of England & Wales, recently described litigation funding as “the life-blood of the justice system”. We are confident that, in the near future, the Irish judiciary will determine that an arrangement between a claimant and a good litigation funder is not unlawful. Indeed, the Harbour team was involved in the funding of an Irish matter back in 2005, in a liquidation in which the third party funding agreement was expressly approved by the judge in the matter. A copy of the Greenclean v Leahy judgment can be found here www.bailii.org/ie/cases/IEHC/2014/H314.html
Solicitors sanctioned for failure to secure ATE insurance Two recent UK cases – Adris v RBS and Heron v TNT – considered the failure of solicitors to arrange ATE insurance. We consider the impact of these decisions and the importance of advising clients about both their costs exposure and how to protect against such exposure. In Adris and Others v Royal Bank of Scotland and Others  EWHC 941, a number of claimants brought claims against the banks alleging breaches of the Consumer Credit Act 1974. The claims had been “farmed” by a claims management company who introduced the claimants to a firm of solicitors. The solicitors made a “cost-free” proposition to the claimants which, in order to work, needed to be underpinned by ATE insurance.
The solicitors eventually admitted that they failed both in their responsibility to obtain ATE insurance and to advise the claimants about their costs exposure if the claims were unsuccessful. His Honour Judge Waksman QC held that the “failure to tell clients that they had no ATE insurance when they would have expected it, or some other means to protect them from costs orders, and that they were exposed to adverse costs orders should they lose was… a gross breach of duty… towards those clients. It also meant that when cases were taken forward… on behalf of those clients, [the solicitors were] effectively acting without instructions since the clients were prevented from giving instructions on anything like an informed view of the case.” He concluded that: “it is obvious that if the clients had been told of the true position they are likely to have instructed (the law firm) not to progress the claims.” The solicitor’s duty to obtain ATE insurance arose out of the claims management company’s scheme, but the failure was also a breach of the SRA Code of Conduct. This constituted a gross breach of duty and rendered the solicitors liable to a non-party costs order [see later in this edition our piece on non-party costs applications], which the defendants applied for.
His Honour Judge Waksman QC
The issue of whether a solicitor was negligent in failing to obtain ATE insurance for his client was also considered by the Court of Appeal in Heron v TNT (UK) Ltd and Another  EWCA Civ 469. The case concerned an employer’s liability claim that lasted from late 2005 until the spring of 2011, when at trial the claimant – by this stage representing himself – was awarded far less in damages than had been offered by the defendant under a Part 36 offer in late 2006.
The defendant applied for a non-party costs order against the claimant’s former solicitors, Mackerell Turner Garrett (MTG), as it realised that the costs order against Mr. Heron would not result in payment of its costs which it believed an ATE insurance policy would have responded to.
“It does not appear to have been challenged… that the failure to pursue ATE insurance for Mr. Heron fell below the standard to be expected.”
Lord Justice Leveson noted that “it does not appear to have been challenged… that the failure to pursue ATE insurance for Mr. Heron fell below the standard to be expected of MTG. Neither has it been challenged that such failure could potentially justify a claim from the moment that the error could not have been remedied by arranging such insurance…” MTG’s counsel argued that the appeal was an attempt to short circuit threatened professional negligence proceedings by Mr. Heron to which MTG would be able to put in issue questions of breach, causation, contributory negligence and quantum. But Lord Justice Leveson’s observation in reply to that argument was telling when he stated in his judgment: “Speaking for myself, I doubt how live some of those issues will be…”
Comment Whilst the Adris and Heron decisions concerned whether a non-party costs order should be made against solicitors, they highlight how seriously Courts view the failure of solicitors to properly advise their clients of their costs exposure in litigation, as well as the relatively simple steps that can be taken to protect clients from such exposure. There are anecdotes in the ATE insurance market that claims for professional negligence against solicitors in such instances have settled over the years. Indeed, we believe that some law firms are actively seeking to “capture” and pursue these claims for clients. The requirement for solicitors to give advice on costs, such that a client can make an informed decision when embarking on litigation, is relevant not merely to ATE insurance but also to other types of funding options.
ATE insurance can be sufficient security for costs – a reminder Many of you will be familiar with the case of Geophysical Service Centre Co. v Dowell Schlumberger, where the UK High Court held that an ATE insurance policy can be sufficient security for costs. We re-visit the Geophysical decision and consider its importance in both the UK and in other Commonwealth jurisdictions. In Geophysical Service Centre Company Ltd v Dowell Schlumberger (Middle East) Inc  EWHC 147 (TCC) the Court considered the question of whether an ATE policy was sufficient security for costs. The claimant was a Jordanian company suffering from difficult trading conditions. Being aware of this, the defendant applied for security for costs. The claimant argued that, as they had the benefit of an ATE insurance policy, there was no reason to doubt their ability to pay any award of costs that may be made against them if they were unsuccessful at trial.
The defendant asserted that an ATE insurance policy could not be sufficient security as there was a risk that the insurer could avoid or cancel the policy. This point had previously been considered in Michael Phillips Architects Limited v Riklin  EWHC 834, where it was held that the ATE insurance policy was not sufficient to resist a security for costs application. In that case the Court held as follows: “it is necessary where reliance is placed by a claimant on an ATE insurance policy to resist or limit a security for costs application, for it to be demonstrated that it actually does provide some security. Put another way, there must not be terms pursuant to which or circumstances in which the insurers can readily but legitimately and contractually avoid liability to pay out for the defendant’s costs.” By contrast, in Geophysical, the Court held that depending on the terms of the policy in question, ATE insurance may be adequate to satisfy the Court that the claimant can pay the defendant’s costs. The Court had to form a view on the meaning of the policy and how readily it could be avoided legitimately and contractually. The ATE insurance policy in this case was similar to that in Riklin, but the policy and circumstances differed in material respects. The defendant’s main contention was that the insurer could seek to avoid the policy, as it would be entitled to if there was a fraudulent non-disclosure or misrepresentation. The defendant argued that because the claim was partly advanced on a series of representations made by the defendant to the claimant, the Court would have to make a finding on those representations; if the Court found against the claimant, the insurer could seek to avoid the policy.
“…the funding of litigation by ATE policies is, and has for some years now, been a central feature of the ability of parties to gain access to justice. ”
The Court also considered that there was only a theoretical chance that breach of an ATE insurance policy could lead to avoidance, because the conditions in the policy in question were not onerous and the claimant had no commercial interest in breaching the conditions. The significant difference between the policy in Riklin and the one in this case was the wording of the cancellation clause. The Court stated that in the present case, the insurers would be liable to provide an indemnity for the defendant’s costs that had been incurred before the date of cancellation. In the event that the insurer cancelled the policy, the defendant would be entitled to return before the Court and apply for security. The Court observed that:
The Court held that this contention represented no more than a theoretical chance that the insurer might seek to avoid the policy. The defendant did not contend that the claim was fraudulent or a sham, and there was a significant difference between a finding that evidence is incorrect (and to be rejected) and a finding that it was fraudulent.
“It is… to be recognised in my judgment that the funding of litigation by ATE policies is, and has for some years now, been a central feature of the ability of parties to gain access to justice. In the absence of evidence to the contrary, the Court’s starting position should be that a properly drafted ATE policy provided by a substantial and reputable insurer is a reliable source of litigation funding.”
Comment The Geophysical decision, and the considerable experience of the UK Courts in relation to ATE insurance and litigation funding generally, has assisted claimants funded by Harbour in other jurisdictions when facing a security for costs application. If necessary, Harbour can pay monies into Court by way of security, but we find that Courts globally are increasingly alive to general policy considerations that support them accepting the dual comfort provided by both the funder and the ATE insurer. In an earlier edition of Harbour View we announced the launch of our syndicate ATE insurance facility, backed by rated and reputable ATE insurers (including the ATE insurer in Geophysical). This facility has enabled us to obtain ATE insurance on our cases within a matter of weeks if not days. Under the syndicate facility, we can insure up to £6.5m of adverse costs per case, and the ATE insurance policy itself is market-leading (e.g. straightforward; very few conditions; virtually non-cancellable). We have already successfully resolved a number of security for costs applications by convincing the Courts, and by extension the defendants, to take comfort from the fact of (and nature of) our funding and our ATE policy.
Non-Party Costs Orders – a guide Until recently, Court orders for payment of costs by a non-party were rare. While still not the “norm”, UK jurisprudence considers such applications as “no more than outside the ordinary run of cases” and Courts have shown an increased readiness to make non-party costs orders. UK Courts can make costs orders against non-parties to litigation pursuant to Sections 51(1) and (3) of the Senior Courts Act 1981. These provisions include that the Court has “full power to determine by whom and to what extent the costs are to be paid” (Section 51(3)). Thus, the Courts have a very broad, discretionary jurisdiction and as case law has developed we have seen an increasing number of recognised categories of non-parties against whom non-party costs orders can be made. The notes to CPR 46.2 show that there have been a very large number of cases decided in recent years concerning Section 51 applications. A number of them, including Symphony Group Plc v Hodgson  1 QB 179 and Dymocks Franchise Systems (NSW) Pty Ltd v Todd  1 WLR 2807 (PC), can be described as leading authorities, giving valuable guidance as to the approach to be adopted on such applications.
One of the first steps when considering whether to make a Section 51 application, or whether one can be successfully defended, is to consider whether or not the individual or entity falls into one of the recognised categories against whom a non-party costs order could be made. These categories were set out by Balcome J in the Symphony case and include the following: • where a person has management of the action, for example, a director of an insolvent company. Such awards against directors are very rare; • where a person has maintained or financed the action (e.g. a director of a company funding the matter personally, a related corporate entity doing so or a litigation funder); • solicitors (legal representatives);
• where the person has caused the action, for example, where A’s negligence caused B to suffer brain damage, causing a personality change which precipitated a divorce. In such a scenario, the Court of Appeal has held that A’s agreement to pay the costs of the divorce proceedings could be justified; • where the person is a party to a closely related action which has been heard at the same time but not consolidated (related persons); • group litigation, where one or two actions are selected as test actions. While other categories exist, the above represents the main groups. The Symphony case also included a list of material considerations to be taken into account by the Courts when making a non-party costs order. For example, the Court emphasised that non-party costs orders are exceptional and should be treated with caution, especially if the non-party could have been joined as a party to the litigation. And the Court urged judges to be alert to the possibility that an application against a non-party is motivated by resentment of an inability to obtain an effective order for costs against a legally aided claimant. In the later case of Dymocks (which remains the leading case on non-party costs orders), the Privy Council reviewed jurisdiction to make non-party costs orders. This review provided, amongst other things, the following guidance: • although such orders are to be regarded as exceptional, in context this means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense;
• generally speaking, the discretion will not be exercised against “pure funders”: those with no personal interest in the litigation who do not stand to benefit from it, are not funding it as a matter of business and in no way seek to control its course; • however, when the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs. This was to include funding for proceedings brought by insolvent companies. Dymocks also provided an insight into the success or otherwise of certain defences to Section 51 applications. Notably, the Privy Council rejected the argument, on the specific facts, that the respondent company had not been warned early enough about the risk that it might be the subject of a Section 51 order. Other case law is mixed on this point. In the case of Brampton Manor (Leisure) v McLean  EWHC 3340 (Ch) it was considered that giving a warning is not a condition precedent, but was a highly material factor. Conversely, in Suisse Security Bank & Trust Ltd v Governor of the Central Bank of the Bahamas  UKPC 41, it was stated that “a failure to give notice of intention to seek costs against a non-party is no more than a factor to be borne in mind when considering whether to exercise the jurisdiction to make and order for costs against a non-party.” A helpful review of the above authorities can be found in the case of Deutsche Bank AG v Sebastian Holdings & Alexander Vik  EWHC 2073 (Comm), from which is it clear that Dymocks remains the leading case. Given the disparity of views on the issue of early warnings to non-parties, it would seem sensible for those who would seek to benefit from a non-party costs award to warn the non-party about its potential costs exposure as early as possible. Of course this is only possible if the winning party is aware that a non-party is funding the case during its pendency. That fact may not be known until the litigation has concluded. Harbour has recently funded a case which was successful in which it became evident, only after the judgment, that the case had been funded and controlled by the director of the defendant company, personally. A Section 51 application in those circumstances, where the defendant company put itself into administration in an attempt to make itself judgment-proof, was appropriate.
Comment As a funder of cases from which we stand to benefit on success, we accept the guiding principle behind non-party costs awards. That is, they are warranted in cases where there would otherwise be a situation in which a person could fund litigation in order to pursue his or her own interests and without risk to himself or herself should the proceedings fail or be discontinued. In the end, the question for the Court will be whether it is just in all the circumstances to make the order sought.
HARBOURNEWS… in brief In spite of the holiday season it was another busy quarter: Susan Dunn – was a panel member at a number of events this summer including a DLA event for In-house lawyers entitled “Great Expectations: Are Arbitrators Delivering?”, and at the Litigation Conference organised by Serle Court discussing law and practice relating to litigation funding in the UK and overseas. On Tuesday 30 September, she will be a panellist on The Future of Law Summit, held at the Caledonian Club.
Rocco Pirozzolo – delivered two presentations, the first for Central Law Training’s annual Costs & Funding Conference, the second for the Bar Council’s Remuneration Conference. He also authored an article, “An Evolving System”, for the August edition of Litigation Funding Magazine.
Stephen O’Dowd and Frances Wacher – attended the inaugural Young Arbitrators Match Awards in Paris, organised by Clifford Chance and sponsored by Harbour. The competition invited practitioners with up to five years’ professional experience to draft an arbitral award. A panel of judges, chaired by Christine Guerrier, General Counsel of French defence contractor Thales, reviewed submissions from 113 participants from 37 countries and awarded the main prize to three Argentine lawyers: Ezequiel Vetulli of Perez Alati Grondona Benites Arntsen & Martinez de Hoz, Pablo Jaroslavsky of Estudio Jaroslavsky Martinez, and Julian Bordachar MacDermott of Baker & McKenzie. More details here: www.pvyap.org/#!yam/ckc0
and finally… The Law Society has published The Litigation Funding Handbook, edited by Harbour’s Director of Litigation Funding Rocco Pirozzolo. The Handbook deals with the impact of the Jackson reforms on funding litigation. It is an essential practitioners’ guide for civil and commercial litigators to all the funding options, and includes chapters on third party funding and ATE insurance. The Litigation Funding Handbook was published on 24 September 2014. More details here: www.harbourlitigationfunding.com/news/new-book-on-all-litigation-funding-options
For more information please go to www.harbourlitigationfunding.com or contact Susan Dunn or Stephen Oâ€™Dowd on 0207 220 2370
Harbour Litigation Funding Limited 5th Floor East, 180 Piccadilly, London W1J 9ER