Benefits of Giving Some Control to Funders During Litigation

In the aftermath of the October 2014 costs judgment from the English Commercial Court that held third party litigation funders and their parent corporations jointly and severally liable for defendants’ costs on an indemnity basis in Excalibur Ventures LLC (“Excalibur”) v. Texas Keystone Inc, et al., numerous articles were published spouting lessons and cautionary tales for the third party litigation funding industry (“TPLF”) to take heed. 

Yet, when viewed in a different light, the Excalibur case also serves as a lesson for naysayers of the industry of what can happen when funders are excluded from maintaining any control in a case.  While opponents of the TPLF industry often refer to the principles underlying the common law doctrines of maintenance and champerty (which prevent an interested third party from financing the case of another for an improper purpose) as reason enough to withhold any and all control from third party funders, a practical application of the issues and findings in Excalibur all point to the benefits of allowing funders some iota of control during the course of litigation. 

Bentham Europe’s Jeremy Marshall eloquently discusses why funders should be given the opportunity to retain some control over those cases it funds in his recent article “Control Issues", published in the December edition of Litigation Funding magazine. 

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For a further analysis and discussion on the topic of funder control in litigation, please see page 7 of Bentham IMF's Roundtable Report.