Summary

Singularis Holdings Limited has succeeded in its claim to retain US$15 million from the proceeds of litigation against Daiwa Capital Markets Europe Ltd (“Daiwa”). This sum was claimed by the Defendant litigation funder, ChapelGate Credit Opportunity Master Fund Limited (“ChapelGate”), under the terms of its litigation funding agreement with Singularis.

Facts

Singularis’ claim against Daiwa went to the Supreme Court ([2019] UKSC 50) where the Court considered the rules on attribution of knowledge to corporates and the defence of ex turpi causa. Singularis nevertheless recovered US$152 million, plus interest and costs. Under the funding agreement between Singularis and ChapelGate, the funder was entitled to 30% of the “Proceeds”, a defined term.

ChapelGate asserted that the reduction of 25% applied at trial in the underlying litigation for Singularis’ contributory negligence was to be added to the actual recoveries, such that the 30% proportion was to be applied to the entire US$204 million claimed and not simply the lesser amount actually recovered. Singularis argued that the contractual definition did not require this and, if there was any ambiguity, the definition should be construed contra proferentem.

Held

Applying Arnold v Britton [2015] UKSC 36, [2015] AC 1619, Wood v Capita Insurance Services Limited [2017] UKSC 24 and National Bank of Kazakhstan v Bank of New York Mellon [2018] EWCA Civ 1390, if the parties had intended to require any reduction for contributory negligence to be added to the actual recoveries for the purposes of the definition of “Proceeds”, in circumstances where the potential success of that defence was known to both parties when the agreement was entered into, they would have made it clear by express provision. Given that there was no express provision, Singularis was entitled to the monies.

The decision is reported at [2020] EWHC 1616 (Ch).

Andrew Ayres QC was instructed by Jenner & Block London LLP for Singularis.