Arkin v Borchard Lines [2003] EWHC 2844 (Comm)

High Court judgment (about 25 pages) on an application for costs against the claimant's professional funder following the failure of the claim.

81. Although MPC was a professional funder which provided funding to Mr. Arkin to enable him to prosecute this claim and in the hope that its agreed share of those damages would provide it with a profit, its relationship to Mr. Arkin and to the proceedings generally was not adverse to considerations of public policy which would otherwise have called for a costs order. It could not and did not attempt to control or influence the conduct of the proceedings otherwise than in accordance with the advice of Mr. Arkin's leading counsel. Had it not entered into the funding agreement, Mr. Arkin would have had to abandon the claim or fight it without calling expert evidence, a virtually futile exercise. MPC could not commercially undertake responsibility for the defendants' potentially huge costs as part of their funding agreement. ATE cover would have been so expensive as to render it impossible for MPC to bear the premium. The claim was very complex and the documentary evidence very difficult to analyse in such a way as to demonstrate before the trial started that the claim could have no real substance. MPC was entitled to rely on leading counsel's advice.

82. In these circumstances the public policy objectives of the deterrence of weak claims and of the protection of the due administration of justice from interference by those who fund litigation must yield to the objective of making access to the courts available to impecunious claimants with claims of sufficient substance. An order for costs against MPC would, I have no doubt, operate as a strong deterrent to professional funders to provide support for impecunious claimants with large and complex claims.

For further information or advice please contact Franck Latrémolière.

Filed under Article 81, Article 82, UK courts.

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