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Gill Germany v Gavin Flatman: Barchester Healthcare Ltd v Richard Weddall [2011], EWHC 2945 (QB)


There was a power under the Senior Courts Act 1981 s.51 to determine by whom the costs of litigation should be paid. Such an order could be extended to non-parties, such as solicitors, in appropriate circumstances. What was required was evidence to show that the solicitor had gone beyond the scope of a solicitor's ordinary role and had acted as a funder of litigation. A solicitor would become a funder if he paid out sums on the basis that they would be recovered from the other side in the event of success, or not at all in the event of failure. A disclosure order was necessary to establish what exactly had passed between a claimant and his solicitor. The judge had misdirected himself in over-estimating the consequences of the applications for the daily workings of the CFA regime as a whole and was unduly influenced by a public policy consideration that did not arise. The applicants were not seeking to establish that an order for third party costs should become the norm in CFA cases. They only sought to make the application if the Claimant's solicitors were shown to have become a funder of litigation. There was sufficient material to justify ordering the disclosure.