Rowe & Ors v Ingenious Media Holdings PLC & Ors [2021] EWCA Civ 29 (15 January 2021)

Rowe & Ors v Ingenious Media Holdings PLC & Ors [2021] EWCA Civ 29 (15 January 2021)

The Court of Appeal held that the court has jurisdiction to require a cross-undertaking in damages as a condition of ordering security for costs, but such an undertaking is not automatic and should only be required in appropriate cases. The cross-undertaking should be limited to external costs directly caused by the provision of security, not to internal arrangements such as the Enhanced Return between claimants and funders. The appeal by the Funded Stewarts Claimants to require a cross-undertaking for the Enhanced Return was dismissed. The Security Defendants' appeal against the requirement to provide a cross-undertaking for external costs was also dismissed.

Citation
[2021] EWCA Civ 29
Parties
Claimants / Appellants: Mr Nigel Rowe & Ors; Defendants / Respondents: Ingenious Media Holdings PLC & Ors; Defendant / Respondent: UBS AG, London Branch; Defendant / Respondent: SRLV (a firm); Defendant / Respondent: HSBC UK Bank Plc; Third Party Funder / Appellant: Therium Litigation Finance AF IC and Therium Litigation Finance Atlas AFP IC
Jurisdiction
England and Wales
Judgment Date
15 January 2021
Procedural Posture
Appeal (civil) / Appeal From High Court Orders on Security for Costs and Cross Undertakings
Outcome
Appeal by Funded Stewarts Claimants dismissed; appeal by Security Defendants dismissed.
Legal Topics
Security for Costs, Cross Undertaking in Damages, Litigation Funding, Civil Procedure Rules (cpr), Access to Justice
Civil Procedure Litigation Funding Security for Costs Cross Undertaking in Damages Civil Procedure Rules (cpr) Access to Justice

Case Brief

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Parties

Mr Nigel Rowe & Ors

Claimants / Appellants

Ingenious Media Holdings PLC & Ors

Defendants / Respondents

UBS AG, London Branch

Defendant / Respondent

SRLV (a firm)

Defendant / Respondent

HSBC UK Bank Plc

Defendant / Respondent

Therium Litigation Finance AF IC and Therium Litigation Finance Atlas AFP IC

Third Party Funder / Appellant

Procedural Posture

Appeal (civil) / Appeal From High Court Orders on Security for Costs and Cross Undertakings

Legal Issues

  1. 1 Does the court have jurisdiction to require a cross-undertaking in damages as a condition of ordering security for costs?
  2. 2 Should a cross-undertaking be required in favour of a litigation funder and in what circumstances?
  3. 3 Should a cross-undertaking extend to losses of claimants themselves when security is ordered against a litigation funder?

Ratio Decidendi

The Court of Appeal held that the court has jurisdiction to require a cross-undertaking in damages as a condition of ordering security for costs, but such an undertaking is not automatic and should only be required in appropriate cases. The cross-undertaking should be limited to external costs directly caused by the provision of security, not to internal arrangements such as the Enhanced Return between claimants and funders. The appeal by the Funded Stewarts Claimants to require a cross-undertaking for the Enhanced Return was dismissed. The Security Defendants' appeal against the requirement to provide a cross-undertaking for external costs was also dismissed.

Court Disposition

Appeal by Funded Stewarts Claimants dismissed; appeal by Security Defendants dismissed.

Orders

  • Cross-undertaking in damages required only for external costs of providing security, not for Enhanced Return.
  • Security for costs to be provided by Therium as previously ordered.