Rowe & Ors v Ingenious Media Holdings PLC & Ors

Rowe & Ors v Ingenious Media Holdings PLC & Ors

A cross-undertaking in damages should only be required as a condition of ordering security for costs in rare and exceptional cases, and only in even rarer cases for commercial litigation funders. The cost of providing security is a normal business risk for funders, who should be adequately capitalised. There were no exceptional circumstances in this case to justify a cross-undertaking. The Judge was correct to refuse a cross-undertaking in the February Order and erred in requiring one in the July Order.

Parties
Claimants / Appellants: Mr Nigel Rowe & Others; Defendants / Respondents: Ingenious Media Holdings PLC & Others; 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
Civil Appeal / Appeal From High Court (security for Costs Orders)
Outcome
Appeal by Funded Stewarts Claimants dismissed; cross-appeal by Security Defendants allowed.
Legal Topics
Security for Costs, Cross Undertaking in Damages, Litigation Funding, Access to Justice
Civil Procedure Litigation Funding Security for Costs Cross Undertaking in Damages Access to Justice

Case Brief

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Parties

Mr Nigel Rowe & Others

Claimants / Appellants

Ingenious Media Holdings PLC & Others

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

Civil Appeal / Appeal From High Court (security for Costs Orders)

Legal Issues

  1. 1 Does the court have jurisdiction to require a defendant to provide 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 if so, in what circumstances?
  3. 3 Should a cross-undertaking extend to losses of the claimants themselves when security is sought against a litigation funder?

Ratio Decidendi

A cross-undertaking in damages should only be required as a condition of ordering security for costs in rare and exceptional cases, and only in even rarer cases for commercial litigation funders. The cost of providing security is a normal business risk for funders, who should be adequately capitalised. There were no exceptional circumstances in this case to justify a cross-undertaking. The Judge was correct to refuse a cross-undertaking in the February Order and erred in requiring one in the July Order.

Court Disposition

Appeal by Funded Stewarts Claimants dismissed; cross-appeal by Security Defendants allowed.

Orders

  • No cross-undertaking in damages required as a condition of ordering security for costs.
  • February Order (refusing cross-undertaking) upheld.