Vol 14 (2017) - Issue 4

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Plus ça change: A Brief Commentary on Excalibur Ventures and Others v Texas Keystone and Others [2016] EWCA Civ 1144

On 18 November 2016, the Court of Appeal ruled in favour of Texas Keystone and Gulf Keystone Petroleum Ltd in Excalibur Ventures and Others v Texas Keystone and Others [2016] EWCA Civ 1144 which has had the result of increasing the potential costs exposure of litigation funders in the United Kingdom on funded claims that do not succeed. Nonetheless, an important take away from this judgment is the Court of Appeal’s endorsement that 'Litigation funding is an accepted and judicially sanctioned activity perceived to be in the public interest.'
As discussed further below, while this could be perceived as a blow to all litigation funders; it simply isn’t. This is a storm in a tea cup that should not affect the professional, institutional litigation funders, like Calunius Capital LLP ('Calunius') who are regulated in accordance with specific requirements set out in the Association of Litigation Funder’s ('ALF') Code of Conduct and who have the expertise at hand to avoid becoming involved in an indemnity costs situation.
We set out below our brief thoughts on Excalibur Ventures and Others v Texas Keystone and Others [2016] EWCA Civ 1144 and how we think it will affect the market moving forward.