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High Court Refuses BHP Permission to Appeal Landmark Mariana Liability Judgment 

By John Freund |

Pogust Goodhead welcomes the decision of Mrs Justice O’Farrell DBE refusing BHP’s application for permission to appeal the High Court’s judgment on liability in the Mariana disaster litigation. The ruling marks a major step forward in the pursuit of justice for over 620,000 Brazilian claimants affected by the worst environmental disaster in the country’s history. 

The refusal leaves the High Court’s findings undisturbed at first instance: that BHP is liable under Brazilian law for its role in the catastrophic collapse of the Fundão dam in 2015. In a landmark ruling handed down last November, the Court found the collapse was caused by BHP’s negligence, imprudence and/or lack of skill, confirmed that all claimants are in time and stated that municipalities can pursue their claims in England. 

In today’s ruling, following the consequentials hearing held last December, the court concluded that BHP’s proposed grounds of appeal have “no real prospect of success”. 

In her judgment, Mrs Justice O’Farrell stated:  “In summary, despite the clear and careful submissions of Ms Fatima KC, leading counsel for the defendants, the appeal has no real prospect of success. There is no other compelling reason for the appeal to be heard. Although the Judgment may be of interest to other parties in other jurisdictions, it is a decision on issues of Brazilian law established as fact in this jurisdiction, together with factual and expert evidence. For the above reasons, permission to appeal is refused”. 

At the December hearing, the claimants - represented by Pogust Goodhead - argued that BHP’s application was an attempt to overturn detailed findings of fact reached after an extensive five-month trial, by recasting its disagreement with the outcome as alleged procedural flaws. The claimants submitted that appellate courts do not re-try factual findings and that BHP’s approach was, in substance, an attempt to secure a retrial. 

Today’s judgment confirmed that the liability judgment involved findings of Brazilian law as fact, based on extensive expert and factual evidence, and rejected the defendants’ arguments, who now have 28 days to apply to the Court of Appeal.  

Jonathan Wheeler, Partner at Pogust Goodhead and lead of the Mariana litigation, said:  “This is a major step forward. Today’s decision reinforces the strength and robustness of the High Court’s findings and brings hundreds of thousands of claimants a step closer to redress for the immense harm they have suffered.” 

“BHP’s application for permission to appeal shows it continues to treat this as a case to be managed, not a humanitarian and environmental disaster that demands a just outcome. Every further procedural manoeuvre brings more delay, more cost and more harm for people who have already waited more than a decade for proper compensation.” 

Mônica dos Santos, a resident of Bento Rodrigues (a district in Mariana) whose house was buried by the avalanche of tailings, commented:  "This is an important victory. Ten years have passed since the crime, and more than 80 residents of Bento Rodrigues have died without receiving their new homes. Hundreds of us have not received fair compensation for what we have been through. It is unacceptable that, after so much suffering and so many lives interrupted, the company is still trying to delay the process to escape its responsibility." 

Legal costs 

The Court confirmed that the claimants were the successful party and ordered the defendants to pay 90% of the claimants’ Stage 1 Trial costs, subject to detailed assessment, and to make a £43 million payment on account. The Court also made clear that the order relates to Stage 1 Trial costs only; broader case costs will depend on the ultimate outcome of the proceedings. 

The costs award reflects the scale and complexity of the Mariana case and the way PG has conducted this litigation for more than seven years on a no-win, no-fee basis - funding an unprecedented claimant cohort and extensive client-facing infrastructure in Brazil without charging clients. This recovery is separate from any damages award and does not reduce, replace or affect the compensation clients may ultimately receive. 

Homebuyers Prepare Competition Claims Against Major UK Housebuilders

By John Freund |

A group of UK homebuyers is preparing to bring competition law claims against some of the country’s largest housebuilders, alleging anti competitive conduct that inflated new home prices. The prospective litigation represents another significant test of collective redress mechanisms in the UK and is expected to rely heavily on third party funding to move forward.

An announcement from Hausfeld outlines plans for claims alleging that leading residential developers exchanged commercially sensitive information and coordinated conduct in a way that restricted competition in the housing market. The proposed claims follow an investigation by the UK competition regulator, which raised concerns about how housebuilders may have shared data on pricing, sales rates, and incentives through industry platforms. According to the claimant lawyers, this conduct may have reduced competitive pressure and led to higher prices for consumers.

The claims are being framed as follow on damages actions, allowing homebuyers to rely on regulatory findings as a foundation for civil recovery. The litigation is expected to target multiple large developers and could involve tens of thousands of affected purchasers, given the scale of the UK new build market during the relevant period. While damages per claimant may be relatively modest, the aggregate exposure could be substantial.

From a procedural perspective, the case highlights the continued evolution of collective competition claims in the UK. Bringing complex, multi defendant actions on behalf of large consumer groups requires significant upfront investment, both financially and operationally. Litigation funding is therefore likely to be central, covering legal fees, expert economic analysis, and the administration required to manage large claimant cohorts.

UK Court Approves Final Settlements in Car Delivery Charges Class Action

By John Freund |

Final settlements have been approved in a long running UK class action concerning allegedly excessive car delivery charges, bringing closure to a case that has been closely watched by the group litigation and litigation funding communities. The approval marks the end of proceedings brought on behalf of thousands of motorists who claimed they were overcharged by car manufacturers and dealers for vehicle delivery fees.

An article in Fleet News reports that the High Court has signed off on settlements resolving claims that delivery charges applied to new vehicles were inflated and not reflective of actual costs. The litigation alleged that consumers were systematically overcharged, with delivery fees presented as fixed and unavoidable despite wide variation in underlying logistics expenses. The case was pursued as a collective action, reflecting the growing use of group litigation structures in the UK consumer space.

The approved settlements provide compensation to eligible claimants and formally conclude a dispute that has been progressing for several years. While specific financial terms were not positioned as headline figures, the outcome underscores the practical realities of resolving complex, high volume consumer claims through negotiated settlements rather than trial. The court’s approval confirms that the agreements were considered fair and reasonable for class members, a key requirement in representative and opt out style actions.

The case also highlights the important role litigation funding continues to play in enabling large scale consumer claims to proceed. Claims involving relatively modest individual losses often depend on third party capital to cover legal costs, expert evidence, and administrative infrastructure. Without funding, such cases would typically be economically unviable despite their collective significance.

SIM IP and Tangibly Partner on Trade Secret Litigation Finance

By John Freund |

A new partnership between SIM IP and Tangibly signals a targeted expansion of litigation finance into the trade secret enforcement space, combining capital with technology designed to assess early stage risk. The collaboration reflects growing interest among funders in data driven approaches to underwriting complex intellectual property claims, particularly those that are traditionally viewed as expensive and uncertain.

A press release reports that the two companies have launched a joint offering aimed at financing trade secret litigation while leveraging Tangibly’s technology platform to help identify, value, and monitor trade secret assets. The partnership is positioned around an AI driven model that evaluates the strength of potential claims earlier in the lifecycle, with the goal of reducing uncertainty for both claimholders and funders before significant legal costs are incurred.

According to the announcement, SIM IP will provide litigation financing for qualifying matters, while Tangibly’s platform will support due diligence by mapping trade secret assets, tracking misappropriation risks, and generating data that can inform enforcement strategies. Trade secret claims often present unique challenges compared to patents, including evidentiary complexity and difficulties around valuation. By combining funding with structured analytics, the partners argue that more meritorious claims can move forward that might otherwise stall due to cost or risk concerns.

The launch also comes against a backdrop of heightened scrutiny of litigation funding disclosures in the United States, particularly in intellectual property disputes. While the partnership announcement does not focus on regulatory issues, it highlights how funders are refining their models to emphasize selectivity, transparency, and risk management rather than broad based capital deployment.

For the legal funding industry, the collaboration underscores a broader trend toward specialization and technology integration. As competition among funders increases, partnerships that blend capital with proprietary tools may become more common, especially in niche areas like trade secrets where early insight can materially affect case outcomes and investment performance.

Judge’s Pushback Limits Funding Discovery in Apple Patent Fight

By John Freund |

A federal judge has rejected an effort by Apple to force disclosure of litigation funding materials in a patent infringement dispute, reinforcing judicial reluctance to open third-party funding arrangements to routine discovery. The decision comes amid ongoing debates over transparency in litigation finance and marks another instance where courts have declined to equate outside funding with improper influence.

As reported in Bloomberg Law, the dispute arises from Apple’s defense against patent infringement claims tied to its iPhone “Back Tap” functionality. As part of its litigation strategy, Apple argued that communications between the plaintiff and its litigation funders could reveal undue control over the case or otherwise undermine claims of independence by counsel. According to the court, those arguments fell short of the threshold required to justify disclosure.

In denying the request, the judge emphasized that generalized concerns about litigation funding do not override long-standing protections such as the work-product doctrine. Materials prepared in anticipation of litigation remain shielded absent a clear showing of substantial need, and the court found no evidence that the funder’s involvement compromised legal strategy or decision-making. The ruling also rejected the notion that the mere presence of third-party funding creates a presumption of relevance or discoverability.

The decision aligns with a growing body of case law in federal courts that treats litigation funding as a legitimate commercial arrangement rather than an automatic basis for expanded discovery. While some judges have ordered limited disclosures in narrow circumstances, particularly in class actions or conflicts analyses, courts have generally resisted defendant attempts to use funding as a backdoor to privileged materials.

Rep. Issa’s Litigation Funding Transparency Effort Falters in House Judiciary Committee

By John Freund |

The latest attempt to legislate transparency in U.S. litigation funding stalled in the House Judiciary Committee this week when the committee considered the Protecting Third Party Litigation Funding From Abuse Act but recessed without ever voting on the measure and did not reconvene to advance it. The bill, introduced by Representative Darrell Issa of California, has now effectively been pulled from further consideration at this stage.

An article in IPWatchdog states that the Protecting Third Party Litigation Funding From Abuse Act was debated alongside other measures during a lengthy markup that focused primarily on immigration enforcement issues. The measure closely tracked a previous effort, the Litigation Transparency Act of 2025, also spearheaded by Issa, which sought to require parties in civil actions to disclose third party funding sources and related agreements. Like its predecessor, the current bill faced procedural challenges and competing priorities in committee, and did not reach the floor for a vote before lawmakers recessed.

Issa and his co-sponsors have framed the effort as necessary to illuminate so-called abuses in the U.S. litigation system by requiring the identity of third party funders to be disclosed to courts and opposing parties. But the repeated failure of similar bills to gain traction reflects deep partisan and practical concerns. Opponents argue that broad disclosure mandates could chill legitimate funding arrangements and impede access to justice, while supporters insist that transparency is essential to protect defendants and the legal system from hidden financial interests.

The stall of this latest proposal comes amid other congressional efforts on litigation finance, including separate proposals to address foreign funding in U.S. courts, but underscores the political and policy challenges in regulating private capital in civil litigation. With the bill pulled, stakeholders will watch for whether future iterations emerge in committee or form the basis of negotiations in upcoming sessions.

Malaysian Bar Backs Arbitration Funding Reform

By John Freund |

The Malaysian Bar has publicly endorsed Malaysia’s newly implemented legislative framework governing third party funding in arbitration, while cautioning that all stakeholders must remain vigilant as the regime is put into practice. The comments come as Malaysia formally joins a growing group of jurisdictions that have moved to regulate litigation and arbitration funding rather than prohibit it outright.

An article in Business Today Malaysia reports that the Malaysian Bar welcomed the coming into force of the Arbitration Amendment Act 2024 on 1 January 2026, which abolishes the long standing common law doctrines of maintenance and champerty in the context of arbitration. The new law expressly permits third party funding for arbitral proceedings and introduces a regulatory structure aimed at balancing access to justice with procedural fairness and independence. According to the Bar, the reforms are a positive and necessary step to ensure Malaysia remains competitive as an international arbitration seat.

The legislation includes requirements for funded parties to disclose the existence and identity of any third party funder, addressing concerns around conflicts of interest and transparency. It also introduces a code of practice for funders, designed to ensure that funding arrangements do not undermine counsel independence, tribunal authority, or the integrity of the arbitral process. The Malaysian Bar emphasised that funders should not exert control over strategic decisions, evidence, or settlement, and that tribunals retain discretion to manage funding related issues, including costs and security for costs applications.

While acknowledging ongoing concerns that third party funding could encourage speculative or unmeritorious claims, the Bar took the position that ethical and well regulated funding should not be viewed as a threat to arbitration. Instead, it framed funding as a legitimate tool that can enhance access to justice for parties who might otherwise be unable to pursue valid claims due to cost constraints. The Bar called on lawyers, arbitrators, institutions, and funders to uphold both the letter and the spirit of the new law as it is implemented.

Omni Bridgeway Appoints Nathan Krapivensky as Investment Advisor

By John Freund |

Global litigation funder Omni Bridgewayhas announced the appointment of Nathan Krapivensky as an Investment Advisor, reinforcing the firm’s ongoing focus on deepening its investment expertise and strengthening origination capabilities across complex disputes.

Omni Bridgeway states that Krapivensky joins the business with extensive experience spanning litigation finance, complex commercial disputes, and investment analysis. In his new role, he will advise on the assessment and structuring of potential investments, working closely with Omni Bridgeway’s global investment teams to evaluate risk, quantum, and strategic considerations across funded matters. The appointment reflects the firm’s continued emphasis on disciplined underwriting and the development of sophisticated funding solutions for corporate clients, law firms, and claimants.

According to the announcement, Krapivensky brings a background that combines legal insight with commercial and financial acumen, positioning him to contribute meaningfully to Omni Bridgeway’s case selection and portfolio construction processes. His experience in analysing disputes at various stages of the litigation lifecycle is expected to support the firm’s efforts to deploy capital efficiently while maintaining rigorous investment standards. Omni Bridgeway highlighted that the role is advisory in nature, underscoring the importance of independent, high-quality judgment in evaluating opportunities across jurisdictions and asset classes.

The hire also aligns with Omni Bridgeway’s broader strategy of investing in talent as competition within the litigation funding market intensifies. As funders increasingly differentiate themselves through expertise rather than capital alone, senior advisory appointments have become a key lever for firms seeking to enhance credibility with sophisticated counterparties. By adding an experienced investment advisor, Omni Bridgeway signals its intention to remain at the forefront of the market for complex, high-value disputes.

Congress Debates Litigation Funding Bill

By John Freund |

Republican lawmakers have renewed their push to rein in third-party litigation funding, with a House Judiciary Committee debate highlighting how politically charged the issue has become.

An article in The Daily Signal reports that members of the House Judiciary Committee clashed this week over legislation that would require disclosure of third-party litigation funding arrangements in federal courts. Supporters of the bill framed it as a transparency measure aimed at exposing the financial interests behind major lawsuits, while opponents warned that the proposal risks limiting access to justice and unfairly targeting a growing segment of the legal finance market.

During the committee debate, Republican lawmakers argued that outside investors are increasingly influencing litigation in ways that can distort outcomes and inflate settlement values. Several speakers characterized litigation funders as profit-driven actors operating in the shadows, asserting that judges and defendants deserve to know who stands to benefit financially from a case. Proponents also linked litigation funding to broader concerns about rising legal costs and what they describe as abusive litigation practices.

Democratic members pushed back, questioning whether the bill was designed to solve an actual problem or simply to deter plaintiffs from bringing legitimate claims. Critics of the proposal argued that disclosure requirements could chill funding for complex and expensive cases, particularly those involving individual plaintiffs or smaller businesses facing well-capitalized defendants. They also raised concerns about confidentiality and whether revealing funding arrangements could give defendants a tactical advantage.

The debate reflects a broader national conversation about the role of litigation finance in the civil justice system. While disclosure requirements have already been adopted in certain courts and jurisdictions, the proposed legislation would impose a uniform federal standard. Supporters say this consistency is overdue, while opponents argue it could undermine carefully negotiated funding structures that allow cases to proceed at all.