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Funding liability: The impact of Excalibur Ventures v. Keystone on litigation funding

The Excalibur Ventures v. Keystone judgment has serious implications for the UK litigation funding market, warn Christopher Coffin and Andrew Dunkley

20 January 2015

On 23 October 2014, the UK commercial court handed down a judgment in Excalibur Ventures v. Keystone et al which has wide-ranging consequences for law firms, litigation funders and insurers.

The judgment follows a court battle over an epic US$1.6bn claim by Excalibur Ventures against Texas Keystone. In his October 2013 judgment, the judge dismissed all of Excalibur's claims and ordered it to pay the defendants' costs on the indemnity basis. This order was made in part because of the way in which Excalibur and its solicitors, Clifford Chance, had conducted the case.

The case raises a number of issues that the litigation funding market will want to bear in mind in future. The key point is that funders will now explicitly consider the risk of an adverse indemnity costs award, both when considering whether to invest at the start and on an ongoing basis throughout the life of the case.

It remains to be seen whether this will act to i...

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