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Lawyers who have racked up millions of pounds of costs, which they may never recover, have been denied security of costs in a landmark ruling
Constant & Constant and Davies Arnold Cooper (DAC) applied for security of costs worth £1m against an independent funder of impoverished claimant Yeheskel Arkin, who is in a unique commercial dispute valued at an estimated £140m. The firms, both acting for respondents, applied for security due to concerns about the funder's financial position, according to one lawyer close to the case. They are also worried about escalating costs that they are unlikely to recover as Arkin is funding his claim under a conditional fee agreement (CFA). Rules state that there is no obligation for a CFA party to take out after-the-event insurance to cover the other sides' costs. The judge ruled that security does not have to be paid because the funder, Managers and Processors of Claims (MPC), has enough funds to cover a sufficient amount of the defendants' costs, understood to be £1.2m. That does not mean MPC will definitely be liable for the other sides' costs; defendant lawyers believe their own clients will have to fork out. The first reason for this is that the court found that funders do not have to pay security on third parties' costs, believed to amount to some £5m in this case. Total defendant lawyer and experts' costs total some £6m. Also, MPC, represented by Gordon Dadds, is contracted to pay only Arkin's experts' costs and is likely to dispute any defendant's claim. To minimise costs, Constants has not instructed experts or a silk. But other respondent lawyers DAC and Berwin Leighton Paisner - not a party to the security action - have instructed some commercial heavyweights.