February Costs Roundtable Summary
Since we last reported the full discussion of Arkin at our recent Roundtable event the world has turned on its axis. But, in the short period between the event and the health crisis, the Court of Appeal handed down judgment in the case we discussed with Robert Marven QC – Chapelgate Credit Opportunity Master Fund Ltd v Money & Ors  EWCA Civ 246 (25 February 2020). The report is available here: https://www.bailii.org/ew/cases/EWCA/Civ/2020/246.html.
As widely expected, the Court of Appeal dismissed the appeal and found no fault in the first instance decision not to be bound by the Arkin cap in circumstances where the funder was not funding a discrete part of the claim, stood to gain a significant reward had the case succeeded and had not insisted upon ATE cover. Had the cap been applied, the successful party would have been significantly out of pocket, despite being in receipt of an indemnity basis costs award.
The Court did not exclude the possibility that the Arkin cap may continue to be applied justly in other cases, but it dismissed the notion that it was in any respect binding.