Purpose
This document evidences the fact that the litigation funding agreement between Tatiana and Burford Capital Ltd. has been upheld as lawful by the English Court.
Overview
On 28 February 2020, Mr Temur Akhmedov counter claimed against Ms Tatiana Akhmedova, arguing that her funding arrangements with Burford Capital were ‘contrary to the public policy against champerty.’
Court Decisions
On 12 June 2020, Justice Gwyneth Knowles ruled to strike out Mr Temur Akhmedov’s counterclaim on the basis that he had failed to demonstrate reasonable grounds for challenging the legality of Tatiana’s funding arrangements.
Summary of Court Decisions
Tatiana argued that the funding agreement was unlawful on the grounds that:
i. such agreements were contrary to public policy against the champertous maintenance of litigation; and
ii. because of a novel public policy relating to family proceedings in particular, which was said to be that third parties should not “traffic” in the outcome of the spoils of matrimonial litigation.
Mrs Justice Knowles struck out Temur’s counterclaim on 12 June 2020:
Mrs Justice Knowles found that Temur had “no entitlement to seek any relief in respect of the Wife’s funding arrangements and has failed to demonstrate that there are reasonable grounds – in the sense of being legally recognisable – for challenging the legality of those arrangements”. Her Ladyship agreed that to grant Temur’s counterclaim would be to “turn justice on its head”.
Knowles J stated that it was necessary for Tatiana “to show some prejudice or injustice to him arising from those funding arrangements or that the funding arrangement may be champertous”. However, given he had failed to do so, and in the context of a litigation funder adhering the Association of Litigation Funder’s Code of Conduct, “[i]n my view, he cannot sensibly maintain, in the light of the Court of Appeal decision in Excalibur, that the litigation funding in this case is prima facie champertous.”
It is well-established that the court will not stay a bona fide action even if it were to be supported by a champertous funding agreement. In circumstances where Tatiana had pleaded no cause of action, and had also failed in oral argument to demonstrate that there were any legally recognisable grounds to challenge the legality of those arrangements, Tatiana had no standing to seek relief.
Without such good reason, a party cannot be granted disclosure of the terms of the funding agreement, in order to investigate whether it is in fact champertous: “Ignorance as to the precise terms of the Wife’s funding arrangements does not, of itself, justify further enquiry or disclose reasonable grounds for bringing the application particularly in circumstances where the Wife’s litigation funder adheres to the ALF’s Code of Conduct” [72] .Finally, the judgment recognised that champerty was “increasingly recondite area of law”, and “is not a developing area of jurisprudence which requires detailed consideration by this court” [73].
On 4 September 2020, the Court of Appeal declined to grant Temur permission to appeal this judgment.
At Paragraph 73 of Akhmedova v Akhmedov & Ors [2020] EWHC 1526 (Fam) (12 June 2020)
“Furthermore, this is not a developing area of jurisprudence which requires detailed consideration by this court. Litigation funding practised by a funder adhering to the Code of Conduct has been endorsed by the senior courts in robust terms. Funding is being provided post-judgment to enable the Wife to secure the recovery of sums already awarded to her in the face of the Husband’s contumelious conduct (assisted by others) in evading and frustrating the enforcement of the judgment debt. Without such funding, the Wife would lose access to justice and the chance of recovering the monies awarded to her in December 2016. In those particular circumstances and for the other reasons set out in this judgment, the concerns expressed in a Parliamentary debate over twenty years ago have little traction.”