In Hellas Telecommunications (Luxembourg) [2017] EWHC 3465 (Ch), the High Court ordered respondent liquidators to disclose the identity of third-party litigation funders and the terms on which funding was provided in order to facilitate an application for security of costs.

Facts

The applicants were defendants in litigation commenced by the liquidators of Hellas Communications (Luxembourg). The applicants applied for an order for disclosure of the identity of those who has been described in evidence as either “the financiers” or “the funders” of the litigation in order for it to make an application for security for costs.

CPR 25.14 (2)(b) provides that the court may make an order for security for costs against a person who has “contributed or agreed to contribute to the claimant’s costs in return for a share of any money or property which may be recovered in the proceedings”.

Liquidators must disclose identity of third-party funders

Mr Justice Snowden referred to various authorities, including Wall v Royal Bank of Scotland plc [2016] EWHC 2460 (Comm), and held that there was power in the court, whether described as an inherent power or a power which is implicit in CPR 25.14, to make orders so as to enable an effective application under CPR 25.14 to be made. Such jurisdiction existed notwithstanding there had not been any pre-existing costs order against any party in the proceedings.

The question was whether there were realistic grounds on which an application under CPR 25.14 might properly be made by the applicants, and whether such an application would have realistic prospects of success. The evidence put forward by the applicants was sufficient to meet this threshold requirement.

Disclosure limited to a “confidentiality club”

In order to protect the legitimate interests of the liquidators in protecting the confidentiality of their funders (as there was a possibility that some of the funders were creditors of the company in liquidation), Mr Justice Snowden limited the disclosure to named individuals and required them to undertake to only use the information for the purposes of determining whether to make an application for security for costs.

The decision adds to the emerging jurisprudence on third-party funding which confirms the power of English courts to require disclosure of third-party funding arrangements in order to avoid unfairly depriving a party of an opportunity to pursue an application under CPR 25.14.

The decision goes further than previous cases by clarifying that the court can limit the disclosure to a confidentiality club and require the recipients of the information to give the necessary undertakings.