Mr Justice Eady
Date: 10 November 2011
The Issues: In these cases heard together, the Claimants lost their claims. They both had limited means and neither of them had ATE insurance cover. The Defendants suspected that the Claimant’s solicitors had agreed to be ultimately responsible for some or all of their client’s own disbursements, and the defendants contended that if so, the solicitors were “a real party” to the claim and they should be jointly liable with the claimant for all of the defendant’s costs.
The Defendants applied to the Trial Judge (Judge Malony QC) for a disclosure order intending to shed light on the funding arrangements in place between the Claimants and their solicitors. The application was refused.
On Appeal, Eady J considered the public policy which underlay the introduction of the CFA regime. One of the important aims of the new scheme was to discourage weak claims and enable successful Defendants to recover their costs in actions brought against them by indigent Claimants. Eady J considered it unusual for litigants conducting proceedings under a CFA not to take out ATE insurance.
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