Hellas Telecommunications (Luxembourg)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Snowden |
| Judgment Date | 20 July 2017 |
| Neutral Citation | [2017] EWHC 3465 (Ch) |
| Docket Number | Case No: CR-2011-013638 |
| Court | Chancery Division |
| Date | 20 July 2017 |
[2017] EWHC 3465 (ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
London EC4A 1NL
Mr Justice Snowden
Case No: CR-2011-013638
Mr S Davies QC appeared on behalf of the Applicant
Mr Richard Jacobs, QC andMr Robert Miles, QC appeared on behalf of the Respondent
(As Approved)
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I am going to give a ruling on this application. Because of the shortness of time, I will do so in fairly truncated form.
The application is for disclosure of the identity of those who have been described in arguments or in the evidence as either “the financiers” or “the funders” of this litigation which is brought by the liquidators of Hellas Communications (Luxembourg) against a number of respondents.
For the liquidators, Mr Davies QC argues that, first of all, there is no jurisdiction at all for the court to order the disclosure of either the identity of the funders or, indeed, any other material in relation to the funding arrangements. He contends that no such power is spelt out in any legislation or in the Civil Procedure Rules and, he says, it cannot be implied from the existence in the Civil Procedure Rules of CPR 25.14.
As a fall-back position, Mr. Davies says that if he is wrong on the first point, the court ought to adopt a two stage process. At the first stage he contends that as a matter of discretion the court should not order disclosure of the identity of the funders, but should simply order the disclosure of such terms and conditions of the funding arrangements, subject to suitable safeguards as to confidentiality so as to enable to the court to decide at a preliminary hearing whether the terms of that funding fall within the scope of CPR 25.14(2)(b): namely, that the person against whom an application for security for costs would be made “has contributed or agreed to contribute to the claimant's costs in return for a share of any money or property which the claimant may recover the proceedings.”
For the respondents, Mr Jacobs QC, supported by Mr Miles QC, submit that this would be the wrong approach. Firstly, they say that it is established on the basis of a number of first instance authorities and, in particular, the decision of Mr Andrew Baker QC (as he then was), sitting as a Deputy High Court Judge in Wall v Royal Bank of Scotland Plc [2017] 4 WLR 2, that the court does have an inherent jurisdiction or implied jurisdiction to make orders for disclosure of the identity of the third party funders in order to give effect to the power to grant security for costs under CPR 25.14. They also contend that such jurisdiction must include the power to make orders relating to any other matters that are necessary to enable the court to determine an application under CPR 24.15. They point out, in particular, that such an application cannot be issued and served until the identity of the third party funder is known.
The core of Mr Baker QC's analysis of the authorities in Wall is contained in paragraphs 19–22, and concludes in paragraph 22 as follows,
“ [CPR 25.14] … changes the landscape entirely. It provides the power, absent at the time of Abraham v Thompson [1997] 4 All ER 362, to grant a remedy against third party funders without first establishing a right to costs, that remedy being an order for security for costs necessarily granted (if it is to be of any utility) before a right to costs has been established. It is still the case that identification of the third party funder(s), if any, will not be ordered as an ancillary pre-cursor to an application under section 51(1) [of the Senior Courts Act 19081) until an application under section 51(1) could otherwise be made, which on the authority of Abraham requires the defendant to have an established right to costs. But that does not mean that it will not, let alone cannot, be ordered as an ancillary pre-cursor to an application under CPR 25.14 that can otherwise be made before the defendant has such an established right. An application for security for costs under CPR 25.14 can be made, and indeed is only really intended to be made, before, normally long before, establishing the defendant's right to costs. If it can otherwise properly be made, except that the defendant does not know against whom to make it, then there must be ancillary...
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Various Claimants v Mercedes-Benz Group AG and Others
...case to be adjudicated. 21 There will of course be variations within the spectrum”. 39 Snowden J (as he was then) in In the Matter of Hellas Telecommunications (Luxembourg) [2017] EWHC 3465 (Ch), made clear that there is a power in the court, whether described as an inherent power or a pow......