All posts by Practical Law Dispute Resolution

REUTERS | GCS
July 26, 2021

Litigation privilege: purpose issues

The Court of Appeal’s decision in Ahuja Investments Limited v Victorygame Limited raises interesting issues around the availability of litigation privilege:

  • How to assess the evidence supporting the purpose for which a potentially privileged communication was sent.
  • Whether there exists an inducement principle which prevents a claim to privilege where the other party to litigation is induced to provide information which they would not have provided had they known the true purpose of the request, and where the true purpose was deliberately concealed or suppressed.

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REUTERS | Carlos Jasso
July 23, 2021

Normal costs consequences (and beyond?)

All civil litigation lawyers tell their clients at the outset of litigation that (a) it is an expensive business and (b) the loser generally pays for it all. This is, after all, enshrined in CPR 44.2(2):

“(a) The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) The court may make a different order.”

That “but” between the two sub-rules gained an added emphasis and some clarification by Fraser J in Beattie Passive Norse Ltd and another v Canham Consultant Ltd (No.2) (Costs).

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REUTERS | Yusuf Ahmad
July 21, 2021

If you reap what you sow, is seed funding always the best solution for getting a speculative claim off the ground?

When it comes to pushing the envelope on the application of litigation funding, lawyers are sometimes known to try and persuade a funder to provide so-called “seed funding”. This is a relatively small commitment of funds to pay for disbursements or fees that are needed before it is possible to establish whether or not there is a viable cause of action worth pursuing.

The seed costs can be for anything from a counsel’s opinion; an asset scoping report; an expert report, or even a court issue fee to keep a potentially viable claim from being time-barred.

The challenge with seed funding is that it is inherently speculative and therefore not how most mainstream professional litigation funders want to deploy their capital. Some funders will rule out any form of seed funding while others may entertain a relatively small amount (dependent, of course upon the potential value of the overall claim).

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