Litigation cases round-up - September 2023

Litigation funding agreements

The Supreme Court held that litigation funding agreements are damages-based agreements (DBAs). Where a commercial funder’s agreement entitles them to receive a percentage of any damages recovered by the funded party, it will be unenforceable if it does not comply with the Damages-Based Agreements Regulations 2013 (R (PACCAR Inc) v Competition Appeal Tribunal).

Privilege exception

The iniquity exception applied where there was a very good arguable case that solicitors were being used to assist an allegedly fraudulent investment scheme. Accordingly, relevant materials held by the solicitors were not protected by privilege and had to be disclosed (Enigma Diagnostics Ltd (In Liquidation) v Boulter).

Setting aside default judgment

The Court of Appeal held that the three-stage test established by Denton v TH White Ltd for applications for relief from sanctions applies also to applications to set aside a default judgment under CPR 13.3. It overruled two first instance decisions that reached the opposite conclusion (FXF v English Karate Federation Ltd).  

Judicial bias

The case law definition of bias – a judge’s prejudice against a party for reasons unconnected with the merits of the case – has been described by the Supreme Court as “quite narrow”. Accordingly, the Court of Appeal concluded that it was preferable to ask whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the party in question would not receive a fair trial (H (A Child: recusal)). 

Norwich Pharmacal relief

The court refused to make a Norwich Pharmacal Order in a claim for libel and malicious falsehood. The applicants hadn't shown that the respondent’s Gmail platform had facilitated a user to post fake reviews on a review website, even though the user had registered with the website using a Gmail account (Davidoff v Google LLC – see our briefing).