14 March 2016

Litigation Funding: Prattley Enterprises v. Vero

Vero’s demand for full recovery of defence costs to penalise private litigation funders disputing insurance payouts has been rejected by the Court of Appeal.
Insurance companies are taking aim at private funders assisting insurance claimants.  Funders bring more cash and often greater expertise into battle.  Insurers prefer claimants to be lighter armed and more disorganised; private individuals, with little or no knowledge of insurance law, no money and desperate for any payment so they can get on with their lives.
After successfully defending attempts to overide a “full and final” insurance settlement paid to owners of the earthquake-damaged Worcester Towers in Christchurch’s CBD, Vero Insurance applied for an increased contribution to its defence costs.  The owners were paid $1.05 million in an insurance settlement six months after the 2011 earthquake.  They later considered payment should have been $1.605 million. Their further claim was funded by Risk Worldwide New Zealand Ltd.  At one point, Risk Worldwide was claiming $8.8 million. It undertook to pay all the costs of litigation.  In return it was to receive a substantial share of any extra payment.
The Court of Appeal ruled the $1.05 million “full and final” settlement stood.  As the winning litigant, Vero is entitled to costs; a contribution towards its legal costs on a set scale, payable by Risk Worldwide as the losing side’s litigation funder.  Vero asked for the full 100 per cent of its legal costs, over and above the set scale. It argued the claim had been vexatious and improper.  The case should never have been brought to trial, Vero said.  The Court ruled it is not appropriate to award full costs merely because a litigation funder with a profit motive stands behind the losing party.  Risk Worldwide’s case was not hopeless, it said.  The dispute raised legal issues requiring consideration.
As an aside, the Court of Appeal was harshly critical of Mr George Keys giving evidence for Worcester Towers’ owners on questions of property valuations.  Mr Keys owns one-third of Risk Worldwide.  The Court said Mr Keys was not impartial, had a powerful financial interest in the outcome and his two roles as an advocate and a supposedly unbiased expert witness were incompatible. 
Prattley Enterprises v. Vero – Court of Appeal (14.03.16)

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