Gill Germany -v- Gavin Flatman & Barchester Healthcare Limited -v- Richard Weddall  EWHC 2945 (QB)
Conjoined appeals by Defendants who had a common insurer against the refusal of an order for further disclosure regarding the Claimants’ funding in two personal injury actions which were dismissed with costs. Both claims were funded by conditional fee agreements without the benefit of ATE insurance. Owing to the impecuniosity of the Claimants and a lack of information provided by their solicitors, the Defendants inferred that the solicitors had been funding the disbursements but required further information before being able to decide on the merits of an application for a third party costs order. The Judge at first instance had considered the criteria in Thomson -v- Berkhamsted Collegiate School  EWHC 2374 (QB) and found them to be fulfilled. However, he found himself compelled to rule against the Defendants by the public policy argument that were such an order to be made, it could lead to the undermining or even destruction of the CFA system. On appeal, Eady J considered the authorities and found that the ‘floodgates’ argument did not apply. Such applications turned on their own peculiar facts. He found that where there are reasonable, albeit slender, grounds to suspect that a solicitor has stepped outside the ordinary role of a litigation solicitor, it may be appropriate to make an order. In the present case, either the Claimants’ Solicitors were funders or not. Appeal allowed.