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The RBS Rights Issue Litigation [2017] EWHC 1217 (Ch)

Key areas: security for costs; High Court

This was an application for security for costs in a case dealt with under a Group Litigation Order.

The application was sought on the basis that both of the Claimants’ funders were based outside the jurisdiction of England & Wales, namely the British Virgin Islands and the Isle of Man.

The applications were opposed on the basis that it was too close to trial, which was due to start less than 3 weeks after the hearing.

The Court consider the evidence that had been provided and held that the BVI-based funder (a commercial litigation funder) could not show that it had “sufficient resources” to be able to pay an adverse costs order.  It also held that the Defendant had shown that the Claimants’ existing ATE policy would not cover all of the costs either.  As a result, the Court ordered security against it in the sum of £7.5 million.

In relation to the Isle of Man-based funder, the Court held that it was simply a “pure funder” and did not aim to profit from the proceedings.  It also held it would be unjust to penalise it given the lateness of the application for security.  As a result, security was not ordered against it.

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