The Arkin cap, which stems from a 2005 case, limits a third-party funder’s liability to pay costs to the sum the funder paid to its unsuccessful claimant. In February, however, the Court of Appeal unanimously held a third-party funder liable for all the defendant’s costs and refused to apply the Arkin cap, in Money & Anor v Chapelgate [2020] EWCA Civ 246.
Writing in NLJ this week, commercial solicitor-advocate Thomas Wingfield considers the impact of the Court of Appeal’s decision. Is it the end for the Arkin cap? How will this affect litigation funders?
Wingfield notes that the cap was always controversial, with many people including Lord Justice Jackson, in his review of civil litigation costs, of the opinion that it tilted the playing field too far in favour of funders. He also points out that the court in Arkin held that judges retain a wide discretion
