Whilst the successes of collective proceedings supported by litigation funders are regularly highlighted by the legal funding industry, an ongoing dispute at the Competition Appeal Tribunal (CAT) between a class representative and funder over a proposed settlement shows that it is not always a relationship in which both parties see eye to eye.
An article in The Law Society Gazette provides a summary of the ongoing hearing at the CAT, as the tribunal hears arguments as to whether the £200 million settlement in the Mastercard hearing should be approved or not. The hearing, which is scheduled to last until the end of the week, saw counsel for the claimant, defendant and funder each offer their arguments on whether the judges should proceed with the collective settlement approval order (CSAO).
Mark Brealey KC, counsel for class representative Walter Merricks CBE, stated that it was the position of both Merricks and Mastercard that the value of the settlement was “in a range that was fair and reasonable.” Responding to the intervention of Innsworth Capital, the litigation funder opposing the settlement, Brealey argued that “the funder should be respectful of the way that Mr Merricks has conducted the proceedings”.
Charles Bear KC, representing Innsworth as the intervener, highlighted the cost of the funder’s support for the case and argued that approval would mean that “the class does not get a fair return on this settlement on any view of distribution.” Bear went further and emphatically stated that Innsworth’s view is that “it is completely clear the settlement prescribes zero value to the case, not little value, but nothing.”
Sonia Tolaney KC, counsel for Mastercard, suggested that it was the views of the class representative and defendant that should hold the most weight, arguing that “There is no doubt that in this case the parties themselves are best placed to assess the merits [of the settlement].” Tolaney also targeted Innsworth’s questioning of whether the £200 million settlement was the best possible outcome for the class representative, declaring that in Mastercard’s view, “that is the wrong question.”