Funding by solicitor

Harcus Sinclair (a firm) v Buttonwood Legal Capital Ltd and others [2013] EWHC 2974 (Ch), [2013] All ER (D) 134 (Oct); NLJ 25 October

Where a non-party was the solicitor to the unsuccessful litigant, the case law mandated a close look at the questions of funding, control and benefit, and how overall, in the light of those factors, the discretion should be applied. The existence of funding by a solicitor could not, therefore, in itself be a sufficient basis for concluding that the solicitor is either the, or a, real party to the litigation or vulnerable to a non-party order for costs. What the court had to see was, therefore, some element which indicated that, as it was sometimes put in the case law, the solicitor had, at least to some extent, acted outside his or her role as a solicitor for his or her client, or, for a purpose outside that role. It had to equally be the case that the potential benefit, if victory enabled the client to pay the solicitor, was not a factor which could properly open the door to an order against the solicitor.