Davey v Money & Anor

Davey v Money & Anor

The court held that the Arkin cap is not a rule of automatic application and, on the facts, it would not be just to limit ChapelGate's liability to the amount funded. Given the seriousness of the allegations, ChapelGate's commercial interest, its knowledge of the risks, and the lack of ATE insurance for the Defendants, ChapelGate is liable for all adverse costs incurred by the Defendants after 23 December 2015, to be assessed on the indemnity basis.

Parties
Applicant/defendant: Julie Anne Davey; Respondent/joint Administrator: James Money; Respondent/joint Administrator: Jim Stewart-Koster; Respondent/section 51 Applicant: Dunbar Assets PLC; Section 51 Respondent/funder: Chapelgate Credit Opportunity Master Fund Limited
Jurisdiction
England and Wales
Judgment Date
17 April 2019
Procedural Posture
Civil Costs Application / Ruling on Non Party Costs Order Under Section 51
Outcome
Non-party costs order granted against ChapelGate; Arkin cap disapplied.
Legal Topics
Non Party Costs Orders, Litigation Funding, Indemnity Costs, Arkin Cap, Access to Justice
Civil Procedure Costs Non Party Costs Orders Litigation Funding Indemnity Costs Arkin Cap Access to Justice

Case Brief

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Parties

Julie Anne Davey

Applicant/defendant

James Money

Respondent/joint Administrator

Jim Stewart-Koster

Respondent/joint Administrator

Dunbar Assets PLC

Respondent/section 51 Applicant

Chapelgate Credit Opportunity Master Fund Limited

Section 51 Respondent/funder

Procedural Posture

Civil Costs Application / Ruling on Non Party Costs Order Under Section 51

Legal Issues

  1. 1 Whether a non-party costs order should be made against a commercial litigation funder under Section 51
  2. 2 Whether the 'Arkin cap' limits the funder's liability for adverse costs
  3. 3 Whether indemnity costs should be awarded against the funder

Ratio Decidendi

The court held that the Arkin cap is not a rule of automatic application and, on the facts, it would not be just to limit ChapelGate's liability to the amount funded. Given the seriousness of the allegations, ChapelGate's commercial interest, its knowledge of the risks, and the lack of ATE insurance for the Defendants, ChapelGate is liable for all adverse costs incurred by the Defendants after 23 December 2015, to be assessed on the indemnity basis.

Court Disposition

Non-party costs order granted against ChapelGate; Arkin cap disapplied.

Orders

  • ChapelGate to pay each Defendant's costs of the proceedings incurred after 23 December 2015, assessed on the indemnity basis if not agreed.