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Excalibur judgment will not deter third-party funders

The funder should always ensure that they are not only comfortable with the claim itself, but also those who are appointed to run it, argues Simon Dluzniak

10 November 2014

The recent decision handed down by Lord Justice Clarke in the high-profile case of Excalibur Ventures LLC v Texas Keystone Inc, has been widely reported for the potential impact it will have on funders. In summary, His Honour held that the third-party funders who had backed Excalibur's failed claims in the matter were liable for the costs of the defendants on an indemnity basis, up to and including any amounts they had provided to the claimants to obtain adverse costs coverage.

The decision of Clarke J in the Commercial Court in London occurs in a case which has caught the media's attention for a number of reasons, including the abject failure of the claimant's case, the astronomical amount of damages sought by Excalibur, and the eye-watering quantum of funds required to conduct the case.

The proposition that a third-party funder may be held liable for any indemnity costs awarded against the funded party is novel, and has raised speculation as to whether ...

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