Excalibur Ventures LLC v Texas Keystone Inc & Ors (Rev 2) [2014] EWHC 3436 (Comm) (23 October 2014)

Excalibur Ventures LLC v Texas Keystone Inc & Ors (Rev 2) [2014] EWHC 3436 (Comm) (23 October 2014)

Non-party funders who substantially funded and stood to benefit from the litigation, and who were the real parties to it, are jointly and severally liable for the Defendants' costs, assessed on the indemnity scale. The Arkin cap applies to limit each funder's liability to the amount funded unless dishonesty or impropriety is shown. The speculative and opportunistic nature of the claim, and the funders' roles, justify indemnity costs.

Citation
[2014] EWHC 3436 (Comm)
Parties
Claimant: Excalibur Ventures LLC; Defendant/costs Claimant: Texas Keystone Inc.; Defendant/costs Claimant: Gulf Keystone Petroleum Limited; Defendant/costs Claimant: Gulf Keystone Petroleum International Limited; Defendant/costs Claimant: Gulf Keystone Petroleum (UK) Limited; Costs Defendant: Psari Holdings Limited; Costs Defendant: Mr Andonis Lemos; Costs Defendant: Blackrobe Capital Partners LLC; Costs Defendant: Blackrobe AEO I Investors LLC; Costs Defendant: Platinum Partners Value Arbitrage Fund LP; Costs Defendant: Hamilton Capital LLC; Costs Defendant: JH Funding LLC; Costs Defendant: Huron Capital LLC; Costs Defendant: Platinum Partners Credit Opportunities Master Fund LP
Jurisdiction
England and Wales
Judgment Date
23 October 2014
Procedural Posture
Commercial Court Costs Application / Post Trial, Costs Determination After Dismissal of Main Claim
Outcome
Non-party costs order granted against funders; costs to be assessed on the indemnity basis, subject to the Arkin cap.
Legal Topics
Non Party Costs Orders, Indemnity Costs, Litigation Funding Liability, Arkin Cap, Section 51 Senior Courts Act 1981
Civil Procedure Litigation Funding Costs Non Party Costs Orders Indemnity Costs Litigation Funding Liability Arkin Cap Section 51 Senior Courts Act 1981

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Parties

Excalibur Ventures LLC

Claimant

Texas Keystone Inc.

Defendant/costs Claimant

Gulf Keystone Petroleum Limited

Defendant/costs Claimant

Gulf Keystone Petroleum International Limited

Defendant/costs Claimant

Gulf Keystone Petroleum (UK) Limited

Defendant/costs Claimant

Psari Holdings Limited

Costs Defendant

Mr Andonis Lemos

Costs Defendant

Blackrobe Capital Partners LLC

Costs Defendant

Blackrobe AEO I Investors LLC

Costs Defendant

Platinum Partners Value Arbitrage Fund LP

Costs Defendant

Hamilton Capital LLC

Costs Defendant

JH Funding LLC

Costs Defendant

Huron Capital LLC

Costs Defendant

Platinum Partners Credit Opportunities Master Fund LP

Costs Defendant

Procedural Posture

Commercial Court Costs Application / Post Trial, Costs Determination After Dismissal of Main Claim

Legal Issues

  1. 1 Should non-party funders be held jointly and severally liable for the Defendants' costs?
  2. 2 Should costs be assessed on the indemnity scale?
  3. 3 How should the Arkin cap be applied to litigation funders?

Ratio Decidendi

Non-party funders who substantially funded and stood to benefit from the litigation, and who were the real parties to it, are jointly and severally liable for the Defendants' costs, assessed on the indemnity scale. The Arkin cap applies to limit each funder's liability to the amount funded unless dishonesty or impropriety is shown. The speculative and opportunistic nature of the claim, and the funders' roles, justify indemnity costs.

Court Disposition

Non-party costs order granted against funders; costs to be assessed on the indemnity basis, subject to the Arkin cap.

Orders

  • Psari Holdings Limited and Mr Andonis Lemos held jointly and severally liable for Defendants' costs on the indemnity scale, subject to the Arkin cap.
  • Hamilton Capital LLC, JH Funding LLC, Huron Capital LLC, Platinum Partners Value Arbitrage Fund LP, and Blackrobe AEO I Investors LLC held liable for costs to the extent of their funding (Arkin cap).