Mr Wall did not appear to have the financial resources himself to finance his very large (£700m) claim against RBS, so RBS inferred that he was using a commercial funder to pay his legal costs. (Wall v RBS).
The Civil Procedure Rules (CPR) give the court power to order that a funder, who "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" (CPR 25.14 (2) (b)), provide security for the defendant's costs. But there is no express power in the CPR for the court to order disclosure of the name and address of a funder if a claimant has refused to provide them voluntarily. Relying on a 2007 High Court decision, (Reeves v Sprecher) in which the judge concluded that there must be an ancillary power to make such an order, RBS asked the court to order Mr Wall to disclose the name and address of any third party funding his claim; they also wanted him to confirm whether the funding fell within the scope of CPR 25.14 (2) (b).
Mr Wall argued that to order disclosure would infringe his Article 8 ECHR rights to privacy. RBS countered that, even if Article 8 was engaged, disclosure was necessary to protect its Art 6 rights to a fair trial.
The court held that it had power to order disclosure of a funder's name and address, ancillary to the express power in CPR 25.14 to order security for costs to be provided by a funder. Moreover, Article 8 ECHR was not engaged: this was high value public litigation "under a system of law that provides for the identity of third party funders to become public" and "where there is no reasonable or legitimate expectation of privacy, the right to private life is not engaged." As there was good reason to believe that the claimant had funding, the court ordered disclosure of the funder's name and address and confirmation whether the funding fell within CPR 25.14.
Mr Wall had taken out ATE insurance to cover his potential liability for RBS' costs if he lost the claim. Insolvent corporate claimants holding ATE policies on the right terms will not be subject to orders to provide security for a defendants' costs. But there is no jurisdiction to order security for costs against impecunious individual claimants like Mr Wall. He had nevertheless provided a copy of his ATE policy to RBS. But RBS were not deflected from pursuing details of his funder and the judge dealing with their application was not asked to review the scope of the ATE policy; he did observe, however, that it might not be relevant to an application against a third party funder.
In the light of this decision defendants may routinely ask for details of any third party funder, where it appears that claimants are not in a position to fund their claims themselves; in similar cases claimants may consider voluntarily disclosing those details, with the funder's agreement.
What do funders make of the decision? One funder comments in the Law Society Gazette on 28 November that his firm is "relatively relaxed about disclosure of our involvement in cases…because it sends two strong messages to the defendants. First that the claim is a good one. Second that the defendants will not be able to employ the…tactic of seeking to use costs escalation as a way of causing the claimant to go away". But the same funder said he would regard it as "wholly unacceptable to have to disclose the terms of the funding, its limits or the funding documentation".
Principal Knowledge Lawyer, Dispute Resolution London, UKView profile