On 24 June 2022, Mrs Justice Moulder handed down judgment in a third-party costs application made by HSBC Bank Plc and other related entities against Therium Litigation Finance Atlas AFP 1C (Therium), a commercial litigation funder, following HSBC Bank’s successful defence of claims brought by The ECU Group Plc (ECU).
Therium had majority funded wide-ranging claims brought by ECU which concerned alleged front-running and manipulation in the foreign exchange markets. The HSBC defendants successfully defeated those claims, including on limitation grounds, and were awarded their costs on the indemnity basis against ECU.
On an application that Therium should be jointly and severally liable for the HSBC entities’ costs, Mrs Justice Moulder held that Therium should be liable for costs incurred from 30 November 2018 onwards, and should be so liable on a joint and several basis.
The judgment is an important decision as regards the principles of third party funders’ liability for costs. Therium was found to be liable for all costs incurred by the HSBC entities from the first date on which costs paid by Therium were incurred, rather than from the later date on which Therium’s litigation funding agreement was executed. Further, Therium was held to be liable for such costs on a joint and several basis, such that the HSBC entities could pursue Therium for the total amount irrespective of the fact that there were other third-party funders involved.
Joshua Crow appeared for the HSBC entities, instructed by Cleary Gottleib Steen & Hamilton LLP.
A link to the judgment can be found here.
Further commentary on the judgment can be found here.