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Therium Litigation Funding !C
T H ERI J M. Charter Place, 23/27 Seaton Place, St Heller, Jorsey,
JE1 1UY
LITIGATION FUNDING T 01534 835835
Rogistered in Jersey, No. 118617
DATE: 26 Nrgucn 2016
LITIGATION FUNDING AGREEMENT
(1) THERIUM LITIGATION FUNDING !C; and
(2) THE INDIVIDUALS LISTED IN SCHEDULE A
© 2016 Therlum Capital Management Limited
DATE: 257 Kaan. 2016
PARTIES:
(1)
THERIUM LITIGATION FUNDING IC (an Incorporated cell registered In Jersey
number 118617) whose address Is Charter Place, 23/27 Seaton Place, St Heller,
Jersey, JE1 1JY (“Therlum"); and
(2) THE INDIVIDUALS listed in Schedule A (the “Clalmantss”) and this Agreement also
constitutes an agreement between each of them, as well as between them and
Therlum;
RECITALS:
(A) The Claimants wish to bring the Claim against the Defendant and have taken, and
continue to take, legal advice on the merits of the Claim from the Solicitors.
(B) The Claimants wish to Irrevocably appoint a steering committee to act as their agent
In relation to the Clalm, and to manage the Claim, on the terms of this agreement
(‘the Agreement").
(Cc) In order to facilitate access to justice, the Clalmants have sought the agreement of
Therium to provide funding In respect of the Claimants’ costs of pursuing the Claim
on the terms of the Agreement.
(D) The Claimants and Therlum have therefore agreed that Therlum will provide funding
in respect of the Claim in accordance with the terms of the Agreement,
(E) The Claimants Intend to enter and/or have each entered into a Conditional Fee
4.
Agreement with the Solicitors which Imposes on each of the Clalmants an Individual
liability to pay the Solicitors costs and disbursements of the Clalmants’ pursuing the
Claim. Save as expressly provided herein, nothing in this Agreement affects the
Claimants’ liability to pay thelr own costs of pursuing the Claim but Therlum’s funding
shall be In terms of providing an Indemnity in relation to the Claimants’ llability for
costs (and to pay them up front) as set out in this Agreement, and all referenced In
this Agreement to paying the costs shall be construed in that context.
OPERATIVE PROVISIONS:
Interpretation
1A In this Agreement the following definitions shall have the following
meanings:
“Adverse Costs Order" means any order of a Court (or agreement, or as a
llabllity as a result of a settlement offer or liability by discontinuing the
Claimant's clalm) requiring the Clalmants or one or more of them to pay
some or all of the costs of any other party to the Proceedings;
“Adverse Costs Indemnity" means the indemnity In respect of an Adverse
Costs Order from Therlum to the Claimants pursuant to clause 12.1 below;
“Adverse Costs Indemnity Limit’ means the total of the Adverse Costs
Indemnity Limit as specified In Schedule B for all tranches of Adverse Costs .
Indemnity incepted;
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“Adverse Costs Indemnity Fee" means, In respect of each tranche of
Adverse Costs Indemnity Incepted, the percentage specified in Schedule B
of the Adverse Costs Indemnity Limit for all tranches of Adverse Costs
Indemnity incepted;
“Adverse Costs Indemnity Tranche 1” means tranche 1 of the Adverse Costs
Indemnity up to the Adverse Costs Indemnity Limit for that tranche;
“Adverse Costs Indemnity Tranche 2” means tranche 2 of the Adverse Costs
Indemnity up to the Adverse Costs Indemnity Limit for that tranche;
“Adverse Costs Indemnity Tranche 3" means tranche 3 of the Adverse Costs
Indemnity up to the Adverse Costs Indemnity Limit for that tranche;
“Appeal” means an appeal of a judgment or award in the Proceedings,
including any cross-appeal of the Claimants and the Claimants’ response to
any appeal of the Defendants.
“Application” means any application form submitted to Therlum by the
Claimants together with all materials and documents submitted to Therlum
prior to the Commencement Date in connection with the Claimants’
application;
“Business Day" means a day on which banks generally are open In the Clty
of London for the transaction of normal banking business (other than a
Saturday);
“Challenge Notice” means written notice setting out the grounds of a
challenge to the fees billed which are payable by Therium pursuant to the
Agreement;
“Claim" means the clalm, details of which are set out In Schedule B;
“Claims” means the individual claims by Claimants, comprising the Clalm;
“Claim Proceeds” means any and all value due to and/or received by, on
behalf of, or In lieu of payment to, the Claimants In connection with or arising
out of the Claim as a result of any Judgment, award, order, settlement
arrangement or compromise, (including payment of any damages,
compensation, Interest, restitution, recovery, judgment sum, arbitral award,
settlement sum, compensation payment, costs and interest on costs),
whether in monetary or non-monetary form, whether actual or contingent,
and before deduction of any taxes which the Claimants may be liable to pay
in respect of the Clalm Proceeds;
“Claim Proceeds Account" means an account prepared by Therium or Its
nominee setting out how any Claim Proceeds are to be distributed to the
parties under the Priorities Agreement;
“Clalmants" means the Individuals and any other as may have entered Into a
Deed of Adherence substantlally in the form appearing at Appendix 4, after
the Commencement Date;
“Commencement Date” means the date specified In Schedule B;
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“Committee” means the group of Individuals appointed by the Claimants to
act as the Claimants’ agent in respect of the Claims and this Agreement and
to manage the Claims under and on the terms of this Agreement, together
with any additlonal or replacement Individuals who may hereafter be
appointed to the Committee to so act in accordance with the terms of this
Agreement.
“Committee Members" means each of the individuals appointed to the
Committee,
“Committed Funds" means, in relation to each tranche of Funding Incepted,
the Committed Funds for that tranche of Funding as detalled In Schedule B;
“Contingency Fee" means, in respect of all tranches of Funding Incepted,
the greater of:
i. the multiple of the total Committed Funds for all tranches
of funding incepted, and
il. the percentage of the balance of all Claim Proceeds
after payment to Therlum of the Reasonable Costs Sum
and any other sums payable In priority to the
Contingency Fee under the Priorities Agreement at the
rate applicable to the last tranche of funding Incepted,
‘as specified in the Schedule, together with any VAT payable on such
amount;
“Costs” means legal costs and Disbursements specified in the Project Plan;
“Counsel” means the barrlster(s) identified In Schedule B who has or have
been Instructed to represent the Claimants in respect of the Claim;
“Court” means the court, arbitration panel or tribunal which has conduct of
the Proceedings;
“CPR" means the Civil Procedure Rules and supporting Practice Directions
of equivalent applicable to the Proceedings;
“Defendants” means the defendants specified In Schedule B;
“Disbursements” means disbursements (whether ralsed by Invoices by the
supplier to the Claimants or Invoiced to the Solicitors and invoiced by them
to the Claimants) plus VAT if applicable, any premium payable for Legal
Expenses Insurance and the cost of providing securlty for costs if required,
where specified in the Project Plan or otherwise agreed or paid by Therlum;
“Funding” means the total of the amount of the Committed Funds as detailed
In Schedule B for all tranches of funding Incepted;
“Funding Agreements" means all contractual agreements entered into by the
Claimants as a result of, or arising from, the Proceedings, including this
Agreement, the Priorities Agreement and any Legal Expenses Insurance
policy;
“Legal Expenses Insurance” means an after the event legal expenses
Insurance policy In favour of the Claimants in respect of thelr potentlal
lability for an Adverse Costs Order on terms and with an insurer approved
by Therlum, such approval not to be unreasonably withheld;
“Net Clalms Proceeds" means the aggregate sum remaining for distribution
to Claimants under clause 3.2.5 of the Priorities Agreement
“Non-Monetary Proceeds" means any Claim Proceeds recelved In non-
monetary form;
“Notice” means a notice given In accordance with clause 29;
“Notice of Interest” means a notice of Interest given pursuant to clause 16.3;
“Notice of Release of Interest” means a notice of release of interest given
pursuant to clause 20.6;
“Party” means a party to this Agreement;
“Priorities Agreement’ means a priorities agreement substantially In the form
appended to this Agreement as Appendix 3, to be executed by the
Claimants in accordance with clause 8.1;
“Proceedings” means the proceedings In the High Court of Justice, Quuen’s
Bench Division, Commercial Court or Chancery Division and such other
litigation or arbitral or ADR proceeding Issued or arising out of or in
connection with the Claim including any pre-action correspondence,
settlement negotiations or mediation and any enforcement proceedings to
enforce payment of any Judgment, order, award or settlement agreement,
which Therlum agrees In writing shall be the subject of this Agreement
pursuant to clause 6.5, For the avoidance of doubt “Proceedings” does not
include an Appeal unless specifically agreed by Therlum pursuant to clause
6.4;
“Project Plan” means the project plan for the Claim, including relevant
strategy, the Solicitor's estimate of the Funding required to pursue the Claim
and an outline timetable, appended to this Agreement as Appendix 1, as
may be varied by agreement between the Partles from time to time in
accordance with clause 24;
“Reasonable Costs” means the Costs, to the extent that those Costs are
reasonably incurred by the Claimants in accordance with the terms of this
Agreement and are within the limit of the Committed Funds in respect of
each tranche;
“Reasonable Costs Sum” means a sum equal to the total of all Costs pald or
otherwise funded by Therlum pursuant to this Agreement, whether or not
those Costs were reasonably incurred by the Claimants In accordance with
this Agreement and whether or not they were specified in the Project Plan;
“Recovery” means the recovery of any Claim Proceeds;
“Solicitors” means the firm of solicitors Instructed by the Claimants to act on
Its behalf in connection with the Claim and identified as such In Schedule B;
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“Tranche 1" means the steps In the Proceedings and the funding
requirement, as detalled In the Project Plan, up to the maximum of the
Committed Funds in respect of that first tranche;
“Tranche 2" means the steps In the Proceedings and the funding
requirement, as detalled in the Project Plan, up to the maximum of the
Committed Funds In respect of that second tranche;
“Tranche 3” means the steps in the Proceedings and the funding
requirement, as detalled in the Project Plan, up to the maximum of the
Committed Funds in respect of that third tranche;
“Tranche 4" means the steps In the Proceedings and the funding
requirement, as detailed in the Project Plan, up to the maximum of the
Committed Funds In respect of that fourth tranche;
"Tranche 5” means the steps In the Proceedings and the funding
requirement, as detailed In the Project Plan, up to the maximum of the
Committed Funds In respect of that fifth tranche;
“Trust Perlod’ means the perlod of 80 years from the date of this
Agreement; and
“VAT" means vaiue added tax at the rate for the time being in force (as may
be varied from time to time by HM Revenue & Customs) or equivalent sales
tax.
Any reference to a Recital, Clause, Schedule or Appendix is to the relevant
Recital, Clause, Schedule or Appendix of or to this Agreement and any
reference to a sub-clause or paragraph Is to the relevant sub-clause or
paragraph of the Clause or Schedule In which It appears,
Except where the context requires otherwise words denoting the singular
include the plural and vice versa, and words denoting any one gender
Include all genders.
Any reference to “persons” includes natural persons, firms, partnerships,
companies, corporations, associations, organisations, governments, states,
foundations and trusts (In each case whether or not having separate legal
personality).
Any reference to powers, rights, entitlements and obligations of the
Claimants shall, where the context allows, be construed as references to,
inter alia, rights of “the Committee”.
Any reference to a statute, statutory provision or subordinate legislation shall
be construed as referring to It as from time to time amended, extended or re-
enacted.
Any phrase Introduced by the terms “Including", ‘Include’, “in particular" or
any similar expression shall be construed as Illustrative and shall not limit
the sense of the words following those terms,
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2 The Committee ~ appointment, authority and constitution
24. The Claimants irrevocably appoint the Committee to act as their agent In
relation to the Proceedings, the management of the Proceedings, and,
unless otherwise provided herein, this Agreement. The agency Includes,
without limitation, authority to:
241A, instruct the Solicitors to discontinue the Proceedings, whether on
behalf of one or more of the Clalmants;
2.1.2, Instruct the Solicitors to enter Into and conduct settlement
negotlations in relation to the Claimants as a collective group or
Individual claims;
2.4.3, Instruct the Solicitors to accept and make offers to settle in
respect of the Proceedings as a whole and/or individual Claims;
2.1.4. instruct the Solicitors to Incur Costs, Reasonable Costs and the
Reasonable Costs Sum;
2.1.5. amend or vary this Agreement, and enter Into, amend or vary any
of the Funding Agreements, and to glve instructions to the
Sollcitors accordingly.
2.2. The Initial Committee Members shall be the following, each of whom Is a
Claimant, and each of whom agrees to his/her appointment to the
Committee, to act as a Committee Member In accordance with the
Committee's agency as prescribed above, until they cease to do so In
accordance with this Agreement:
2.2.1. Alan Bates of [*] ("the Chairman");
2.2.2, Kay Linnell of
2.2.3, ft]
2.3, The following rules shall govern the appointment, removal and resignation of :
Committee Members.
2.3.1, A person shall cease to be a Committee Member as soon as ha
or she:
(a) retires by notifying each Committee Member and the
Solicitors in writing;
(b) dies; -
(c) becomes Incapable by reason of mental disorder, IlIness
or Injury of managing and administering his or her own
affairs;
(d) has a bankruptcy order made against him or her; or
(e) a majority of the Committee Members resolve at a
properly convened meeting of the Committee (or by the
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2.4,
2.5.
26.
2.3.2.
remaining Member In the event that 2.3.1(a), (b), (c), (d) or
(2) applies), with the consent of the Solicitors, that he or
she should cease to be a Committee Member.
No person shall be allgible to be appointed a Committee Member
until he or she has executed a confidentiality agreement on the
terms prepared by the Solicitors.
A person shall be appointed a Committee Member by the
resolution of a majority of the Committee at a properly convened
meeting of the Committee, subject to the consent of the Solicitors
and provided that the number of Committee Members shall not
exceed seven at any one time.
The following rules shall govern Committee meetings:
244,
2.4.2.
Committee meetings may be called by a Committee Member and
may be held in person on § Business Days’ notice or by
conference call on 24 hours’ notice, such notice to be. provided by
email or by other means agreed,
Committee meetings shall be considered quorate only If two or
more Committee Members are in attendance, whether in person
or by telephone or by alternative means of electronic
communication (FaceTime, Skype), save where the number of
Committee Members has fallen below two by operation of clause
2.3.1 above, or in the event that the Initial Committee Members
number less than five, In which case a Committee meeting shall
be quorate if all remaining members are in attendance.
The Committee will inform the Solicitors and Therium Immediately
a Committee meeting has been called, and the Solicitors and
Therlum may attend such meeting in whatever manner they deem
suitable.
Claimants who are not Committee Members shall not be entitled
to attend Committee Meetings, save by express invitation of the
Chairman,
The Committee shall agree by simple majority to appoint a
Committee Member as Chairman from time to time.
Minutes must be kept of all Committee Meetings, approved by the
Committee and copies retained by the Committee and provided to
the Solicitors and Therium,
The business of the Committee will be resolved by a simple majority vote or
unanimous vote of Committee Members; In the absence of a majority or
unanimous vote, the Chairman of the Committee will have the deciding vote.
With respect to the acceptance, and making of, offers to settle the Claim, the
Committee shall not exercise a vote In accordance with clause 2.5 above
until the Committee has Instructed senior Claimants’ Counsel, and senior
Leading Counsel has advised, that acceptance of, or the making of, a given
offer Is in the best interests of the Claimants, either individually or
collectively.
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27.
2.8.
2.9.
2.10,
244.
The Committee shall Instruct the Solicitors to act In accordance with the
terms of this Agreement and, In particular, In accordance with clause 13.2.1
to 13.2.7, 13,2.10 to 13.2.16, and 13.3 bolow.
The Committee shall, acting on behalf of the Claimants:
2.8.1. act In accordance with the terms of this Agreement, using its
reasonable endeavours to act In the best interests of the
Claimants as a collective group. If there is a conflict between the
two, the Interests of the collective group shall prevall over those
of individual Clalmants:
2.8.2. act as the Claimants’ representative to the Solicitors In respect of
the Proceedings;
2.8.3, agree to the Project Plan, after consultation with the Sollcitors in
accordance with this Agreement;
2.8.4, provide instructions to the Sollcitors with respect to entering into
any Funding Agreements;
2.8.5. report to the Claimants from time to time on its discussions with
the Solicitors. The Claimants agree that, for reasons of
practicality and strategic confidentlallty, the level of detall of such
reports may be restricted to reflect the risk of unintentional
dissemination to the Defendants. The Claimants also agree that
the Solicitors’ report on costs (as defined in this Agreement) to
the Committee will be a sufficient report to them, and that the
Solicitors will have no further duty to report on costs;
2.8.6, seek regular reports from the Solicitors on the Costs, Reasonable
Costs, and Reasonable Costs Sum;
2.8.7. approve Reasonable Costs, with or without the assistance of an
appointed costs draftsman, on whose advice they may rely;
2.8.8, manage the distribution of Clalm Proceeds, to the Clalmants, both
in respect of the amounts and timing of payments,
Subject to clause 2.8.1 above, and subject to a Committee Member
breaching his or her dutles under the confidentiality agreement executed in
accordance with clause 2.3.2 above, no Committee Member shall be liable
to the Claimants for his own acts, omissions or defaults or for any loss to the
Claimants Incurred In connection with his role on the Committee, save
where the same is caused through the Committee Member's fraud or
dishonesty.
No Committee Member shall be lable, whether Jointly or severally, for the
acts, omissions or defaults of any other Committee Member.
The Committee Members shall be indemnified by the Claimants against any
costs, losses or expenses to which they may become llable to a third party
as a result of the proper exercise of their dutles as Committee Members, but
Committee Members shall be entitled to reimbursement of out of pocket
expenses and compensation for time reasonably Incurred in discharging
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thelr committee duties, subject to any such tlme/cost being approved in
advance by the Solicitors and Therium.
Committee — settlement
3.1. The Claimants expressly authorise the Committee to make, and accept,
offers to settle the Proceedings and the Claims, Individually and also on a
global basis, and, on a settlement, to allocate and to distribute the Claim
Proceeds, subject to the terms of this Agreement and the Funding
Agreements, by reference to each Individual Claimant's Proportionate Share
(as defined in clause 12.10) of the Clalm.
3.2, The Clalmants agree that for the purposes of clause 3.1 above and
distribution (amount and timing) of Claim Proceeds generally, no account
will be taken by the Committee of the Individual strengths or weaknesses of
an individual Claimant's case given the disproportionate costs of so doing.
3.3, Notwithstanding the generallty of clauses 3.1. and 3.2 above, the Claimants
hereby agree with each other and expressly authorise the Committee,
subject only to acting In accordance with the advice of the Solicitors and
Counsel, to adjust the distribution of Claim Proceeds between the Claimants
where to distribute the Claim Proceeds in accordance with clause 3.1 would
give rlse fo manifest unfaimmess. Subject to the requirement that the
Committee act at all times In accordance with legal advice of Solicitors and
Counsel, the Committee's decision on the allocation of Claim Proceeds
between Clalmants for distribution purposes shall be final. The Committee
shall be under no obligation to exercise Its discretion pursuant to this clause
3.3 nor shall It be under any duty to conduct any Investigation or enquiry
Into, or have regard to any, circumstances which may be potentially relevant
to the exercise of that discretion.
Agreement to Fund
4A, Subject to clause 4.2 and 4.8 below, In return for the Claimants’ agreement
to pay, where there Is a Recovery, the Reasonable Costs Sum and the
Contingency Fee and the Adverse Costs Indemnity Fee (if any) In
accordance with the terms of this Agreement, Therium agrees with effect
from the Commencement Date to pay the Claimants’ Reasonable Costs
Incurred in respect of Tranche 1 and any subsequent tranches of Funding
incepted, up to the amount of the Committed Funds for those tranches, in
accordance with the terms of this Agreement.
4.2, If the Recovery Is Insufficient to pay the Reasonable Costs Sum and the !
Contingency Fee in full then the Recovery shall be applied In accordance
with the priority as set out In the Priorities Agreement until the Recovery has fl
been fully applied, after which no further sum shall be payable pursuant to
thls Agreement.
4.3, At the option of Therlum, exercisable on the completion of the stages of the I
Proceedings secured by Tranche 1, and at Therlum's sole discretion, I
Therium shall have the exclusive right but not the obligation to fund Tranche
2 on the terms set out in this Agreement. Therlum may elect to Incept
Tranche 2 either as a single tranche of Funding or as a serles of sub-
tranches each exercisable on the exhaustion of the Committed Funds from
the previous tranche.
44,
4.5,
46,
AT,
4.8.
At the further option of Therium, exercisable on the completion of the stages
of the Proceedings covered by Tranche 4 and Tranche 2, and at Therium’s
sole discretion, Therlum shall have the exclusive right but not the obligation
to fund Tranche 3 on the terms set out In this Agreement. Therlum may
elect to Incept Tranche 3 either as a single tranche of Funding or as a series
of sub-tranches each exercisable on the exhaustion of the Committed
Funds from the previous tranche.
At the further option of Therlum, exercisable on the completion of the stages
of the Proceedings covered by Tranche 1, Tranche 2 and Tranche 3, and at
Therium's sole discretion, Therlum shall have the exclusive right but not the
obligation to fund Tranche 4 on the terms set out in this Agreement.
Therlum may elect to Incept Tranche 4 either as a single tranche of Funding
or as a series of sub-tranches each exercisable on the exhaustion of the
Committed Funds from the previous tranche.
At the further option of Therium, exercisable on the completion of the stages
of the Proceedings covered by Tranche 1, Tranche 2, Tranche 3 and
Tranche 4, and at Therlum's sole discretion, Therlum shall have the
exclusive right but not the obligation to fund Tranche 6 on the terms set out
In this Agreement. Therlum may elect to incept Tranche 5 elther as a single
tranche of Funding or as a series of sub-tranches each exercisable on the
exhaustion of the Committed Funds from the previous tranche.
The options set out as clauses 4,3, 4.4, 4.5 and 4.6 above shall be
exercisable from the date they arise and remain open and exclusive for 2
months from that date. Whilst the Clalmants acknowledge that the exercise
of the options set out at clauses 4.3 to 4.6 above Is in Therlum’s solo
discretion, Therlum agrees that it shall exercise (or decline to exercise)
those options In a rational manner having regard to the benefit for which the
Parties entered Into this Agreement. Time shall only start running for the
purposes of this sub-clause when the Claimants or the Solicitors have
notified Therium In writing that the preceding tranche has been exhausted,
If the period of 6 weeks expires without Therlum exercising the option, the
Claimants may enter Into alternatlve funding arrangements for that and any
subsequent tranche, save that Therlum shall continue to be entitled to
exercise that option at any time up until the Claimants enters Into a binding
obligation which puts alternative funding In place for the whole of the
Committed Funds for that and any subsequent tranche, at which point the
option shall lapse.
In the event that Therium declines to exercise the options set out at clauses
4.3, 4.4, 4.5 and 4.6 above within 6 weeks in accordance with the foregoing
clause, the Claimants may terminate this agreement and discontinue the
litigation, subject to clause 20,7.
Payment Terms and Interest
5.2,
5.1,
The Reasonable Costs Sum and Contingency Fee shall become payable In
the event that the Claimants achleve a Recovery and shall be pald in
accordance with clause 17.
In the event that any sum payable under this Agreement Is not paid by Its
due date, interest will be payable on such sum at the rate of 4% per annum
above National Westminster Bank Pic's base rate for the time being In force,
compounded annually, from the date on which payment was due to the date
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payment is recelved, or for such other period as may be specified In this
Agreement. All references In thls Agreement to Funding, funding or fund the
costs and expenses of pursuing the Clalm however described, shall be
construed to be references to Therium's investment In the Claim and
associated right to share In the Claim Proceeds together with the other
rights set out In this Agreement, and It shall not be construed as a loan from
Therlum to the Claimants or as giving rise to a lender / borrower
arrangement.
6. The Project Plan
6.4. For reasons of strategic and commercial sensitivity, the Claimants agree to
waive any requirement there may be to be sent (alectronically or otherwise)
a full copy of this Agreement, which will instead be made available in
redacted form or on a secure website to which each Claimant will have
restricted access, and for inspection at tho offices of the Solicitors only.
Each Claimant will, on execution, receive a copy of this Agreement with inter
alla details of the Project Plan and Contingency Fee and Committed Funds.
redacted, and Therium will request the Solicitors to prepare, and distribute to
each Claimant, an information sheet containing an overview of this
Agreement and its effect.
6.2. The Project Plan will be the subject of discussion and agreement between,
the Committee and the Solicitors and may be amended from time to time.
6.3, In the event that the Defendant brings a counterclaim in the Proceedings (on
a generic or claim-specific basis), then the Claimants may request Therlum
to provide funding In respect of the Costs of defending the counterclaim. If
Therium consents to this request, then the Costs of defending the
counterciaim(s) shall form part of the Funding and be incorporated into the
Project Plan (which, along with Schedule B, shall be deemed amended
accordingly).
6.4, In the event of an Appeal, then the Claimants may request Therlum to
provide funding in respect of the Costs of dealing with the Appeal. If Therium
consents to this request, then the Costs of dealing with the Appeal shall
form part of the Funding and be Incorporated Into the Project Plan (which,
along with Schedule B, shall be deemed amended accordingly),
6.5. In the event that proceedings involving the Claimants and relating to the
Claim, other than the Proceedings, are begun, the Claimants may request
Therlum to fund the Costs of any or all of such proceedings. If Therlum
consents to this request (and for the avoldance of doubt Therlum may
consent to providing funding In respect of the Costs of any or all of such
proceedings (or none of them)) the Costs of the proceedings shall form part
of the Funding and be Incorporated Into the Project Plan (which, along with
Schedule B, shall be amended accordingly).
7 Excluded Costs and Liabilities
TA, Unless otherwise agreed by Therium, Therlum will not pay nor be Ilable
under this Agreement for any of the following costs, sums or Ilabilities
incurred by the Claimants:
7.4.4, Costs and/or other sums incurred as a result of the Claimants’
fallure (on any one or more occasions) to co-operate with or to
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follow the advice of the Solicitors and/or Counsel;
7,2, Costs and/or other sums Incurred as a result of any default by the
Claimants;
7.1.3. any liability for payment of the Defendant's costs or the
Claimants’ llabillty for fines or penalties save to the extent set out
In the Project Plan or as otherwise provided for In this Agreement;
714. Costs and/or other sums incurred as a result of any unreasonable
failure by the Claimants to comply with the CPR or an order of the
Court during the Proceedings;
7.1.5. Costs and/or other sums Incurred as a result of any unreasonablo
failure by the Claimants to comply with a pre-action protocol;
7.1.6. Costs and/or other sums incurred prior to the Commencement
Date (save to the extent that those costs are Included in the
Project Plan) or after termination of this Agreement;
TAT, any element of VAT where otherwise recoverable by the
Claimants;
7.1.8. any Costs Incurred In excess of the Reasonable Costs;
7.1.9, save if and to the extent ordered by the Court, any adverse costs
incurred as a result of steps taken before the Commencement
Date or after the date of termination of this Agreement; or
7.1.10. save to the extent set out in the Project Plan (or as otherwise
agreed), any premium for costs insurance including the Legal
Expenses Insurance.
8. Conditions Precedent and Warranties
84.
8.2,
This Agreement shall not come Into force unless and until the Claimants
have executed the Priorities Agreement.
The Claimants acknowledge and accept that Therlum’s decision to enter into
this Agreement Is solely based on the information and materials provided in
and with the Application (which shall Include coples of all legal advice to the
Claimants relating to the Claim and all correspondence with the Defendant
relating to the Claim) and other documents and materlals provided to
Therlum and/or their representatives prior to the Commencement Date and
that If any such information, documents and/or materlals are inaccurate,
untrue, Incomplete or have not been disclosed to Therlum and/or thelr
representatives, this may affect Therium's decision to provide or continue to
provide funding under thls Agreement. Tho Claimants confirm that to the
best of the Clalmants' knowledge and belief, the information and materials
provided In and with the Application, and the documents and materials
provided to Therium and/or thelr representatives prior to the
Commencement Date are accurate, complete and true in all material
respects and that the Clalmants have not falled to disclose any Information,
document and/or material which would be relevant to Therium's decision to
enter Into and remain bound by thls Agreement.
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8.3, Except as may already have been fully disclosed tn writing to Therlum prior
to the execution of this Agreement, the Clalmants warrant that:
8.3.1, the Claimants have not granted (or purported to grant) any
charge, llen or other security In favour of a third party over the
Claim or the Claim Proceeds (or otherwise dealt with the same in
any way);
8.3.2, they will not grant (or purport to grant) any such charge, lien or
other security or otherwise deal with the Claim or the Claim
Proceeds In any way (save in respect of any Legal Expenses
Insurance premiums payable by the Clalmants) until all payments:
due to Therlum under this Agreement have been met or
otherwise extinguished; and
8.4, Therlum and the Clalmants each warrant that the execution and
performance of, and compliance with, thelr respective obligations under this
Agreement Is fully authorised by each of them and the persons executing
the Agreement have the necessary and appropriate authority to do so.
8.5. The Claimants warrant and acknowledge that they have taken legal advice
from the Solicitors or otherwise on the terms of this Agreement prior to
entering into It.
Claimants’ costs
9.4. The Claimants’ liability for costs will be provided for by the terms of the
Sollcitors’ engagement letters, the Conditional Fee Agreement (and any
subsequent conditional fee agreements) and this Agreement, unless
otherwise agreed in writing.
9.2, The Claimants agree, so far as possible, to run the common elements of
thelr separate clalms jointly, and for the common costs ("Common Costs")
recoverable from the Defendants on success, to be shared in accordance
with this Agreement. The definitions of “Common Costs” and “Individual
Costs” as set out In the Conditional Fee Agreement between the Claimants
and the Solicitors are adopted also for the purposes of this Agreement and
specific issues which apply to some, but not all, Claimants shall be treated
as Common Costs.
9.3. ‘The Claimants agree that, if appropriate, the Proceedings should be
managed under a Group Litigation Order to regulate their claims and agree
that the costs of any test case within the Proceedings will be treated as
Common Costs.
Costs sharing
10.4. The Clalmants agree that, unless the Court orders otherwise, the amount of
Common Costs, Including Reasonable Costs and those comprised In the
Reasonable Costs Sum, referable to each Claimant, shall be a
Proportionate Share as defined In clause 12.10 below. In contrast, Individual
Claimants are each liable for 100% of the Individual Costs of their individual
Claims.
10.2. The Claimants Instruct the Solicitors to apply to the Court for an order
reflecting the agreement In clause 10.1, subject to the Solicitors’ advice not
14
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to do so. In the absence of such an application or where no order Is made,
the Claimants agree to the following mechanism in respect of the
Proportionate Share of the costs referred to in clause 10.1 above:
10.2.1, a Clalmant can require all other Clalmants to provide him with
thelr share of an indemnity in respect of hls own costs, each such
Indemnity In respect of other Claimants’ costs being calculated on
the same basis as the Proportionate Share in respect of each
Claimant's costs liability, so that, in that event, each Claimant Is
liable for their own Proportionate Share of the costs as defined In
clause 10.1 above.
10.2.2. the indemnity at clause 10.2.1 above shall be, in total, a full
indemnity; and
10.2.3, by agreeing to accept the indemnity at clause 10.2.1 above, each
Claimant Is required to provide all other Claimants with his share
of an indemnity in respect of the other Claimants’ own costs as
per the Proportionate Share.
Payment of Reasonable Costs
114,
11.3,
11.4,
The Claimants shail instruct the Solicitors and any other suppliers of
services provided for in the Project Plan to address involces relating to the
work described In the Project Plan to the Claimants (whom remain primarily
liable for the same) but marked payable by Therium and to deliver those
invoices to Therlum (copied to the Clalmants) for payment. In the case of the
Solicltors' own costs, these shall be paid monthly or on such other terms as
are agreed between the Claimants, Therium and the Solicitors.
{f in the reasonably held opinion of Therlum, any Costs invoiced by the
Solicitors or any other supplier of services are not Reasonable Costs,
Therium shall serve a Challenge Notice on the Claimants, with a copy to the
relevant suppller, within 20 Business Days of delivery of the relevant invoice.
In the event of a Challenge Notice being served, the Claimants agree to
raise any queries identified in the Challenge Notice with the relevant supplier
with the aim of reaching an agreement as to the disputed Costs, Where an
agreement, satisfactory to Therium, cannot be reached within 10 Business
Days of service of the Challenge Notice, the decision as to whether such
Costs are Reasonable Costs shall be taken by an independent costs lawyer
(the "Costs Lawyer’) within 20 Business Days of his appointment. The Costs
Lawyer so appointed shall be a member of the Association of Costs Lawyers
and shall be appointed by Therlum. Therium and the Claimants agree to be
bound by such decision, and the Claimants shall use all reasonable
endeavours to procure the agreement of the relevant suppller to be bound
by such decision. Unless the Costs Lawyer directs another person to pay his
costs, Therium agrees to meet his costs which shall be treated as part of the
Reasonable Costs and within the Project Plan save that the amount of the
Committed Funds shall remain unaffected,
Pending resolution of a Challenge Notice, Therlum shall pay all Costs that
are not subject to challenge.
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Within 5 Business Days of receiving the Costs Lawyer's decision, Therlum
will pay any sum owing to either the relevant supplier and/or the Costs
Lawyer if directed by the Costs Lawyer.
The Solicitors shall have the option fo request that Therlum approve any
intended Item of expenditure before it Is incurred, and In the event that
approval is granted, clauses 11.2 to 11.5 above shall not apply.
Adverse Costs Orders
12.4,
12.2,
12.3,
12.4,
12.6,
Therium agrees that, from the Commencement Date and up until termination
of this Agreement or the prior conclusion of the Proceedings, Therium shall
indemnify the Claimant in respect of any Adverse Costs Order made against
the Clalmants up to a maximum amount of the Adverse Costs Indemnity
Limit for Adverse Costs Indemnity Tranche 4 (If any) and for any additional
tranches of the Adverse Costs Indemnity Incepted from time to time
pursuant to clauses 12,2 and 12.3 below.
At the option of Therlum, exercisable from when Therium reasonably
considers that the Defendants’ costs have exceeded the Adverse Costs
Indemnity Limit for Adverse Costs Indemnity Tranche 1, at Therlum’s sole
discretion, Therlum shall have the exclusive right, but not the obligation, to
Incept Adverse Costs Indemnity Tranche 2 on the terms set out in this
Agreement.
At the further option of Therlum, exercisable from when Therlum reasonably
considers that the Defendants’ costs have exceeded the Adverse Costs
Indemnity Limit for Adverse Costs Indemnity Tranche 2, at Therlum’s sole
discretion, Therium shall have the exclusive right, but not the obligation, to
Incept Adverse Costs Indemnity Tranche 3 on the terms set out In this
Agreement.
The Claimants agree to {irrevocably Instruct the Solicitors to report monthly
‘on the known or anticipated level of costs incurred by the Defendants from
time to time and to advise If the level of those costs exceed the Adverse
Costs Indemnity Limit for the incepted tranches of the Adverse Costs
Indemnity,
For the avoldance of doubt, Therlum may elect to incept tranches of the
Adverse Costs Indemnity independently of the Incepting of the Funding
Tranches under this Agreement.
The Parties agree that any sum paid by Therlum in respect of any Adverso
Costs Order (whether made against the Clalmant or Therlum and whether or
not paid pursuant to the Adverse Costs Indemnity) shall form part of the
Reasonable Costs Sum and shall be reimbursed to Therlum from Claim
Proceeds pursuant to clause 3.2 of the Priorities Agreement.
Unless agreed by the Parties In writing, the Claimants shall use reasonable
endeavours to take out and maintain an after the event Legal Expenses
Insurance policy (at thelr own cost) sufficient to meet any risk of any
Adverse Costs Order In favour of the Defendant or any third party relating to
the Claim and the Proceedings above the Adverse Costs Indemnity Limit for
all tranches of the Adverse Costs Indemnity as set out In Schedule B. In the
event that, other than as a result of breach of this clause 12.7, the level of
costs Incurred by the Defendants as are reasonably advised by the
16
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12.8,
12.9.
12.10.
Solicitors pursuantito clause 12.4 exceeds the level of the Adverse Costs
Indemnity and any cover under any after the event Legal Expenses
Insurance policies such that the Claimants are exposed to uncovered
adverse costs risk, Therlum agrees that the Claimants shall be entitled, for
the purpose of this Agreement, to discontinue the Proceedings forthwith.
Subject to clause 12.1 and the exercise of the options at clauses 12.2 and/or
12,3 above, and without prejudice to clauses 12.6 and 12.7, nothing in this
Agreement shall confer any lability on Therlum for any adverse costs and/or
any Adverse Costs Order and the Claimants shall indemnify Therium
against any order for costs as may be made against Therlum.
Nothing in this Agreement shall prejudice:
12.9.1. Therium's right to such an indemnity or contribution from the
Claimants in respect of any Adverse Costs Order; or
12.9.2, Therium’s contentions In relation to any application by any party
to the Proceedings for an order for costs against Therlum.
The Claimants agree and acknowledge that, notwithstanding clauses 12.1 to
12.8 above, they may be jointly and severally liable in law to satisfy an
Adverse Costs Order. The Claimants agree collectively for the purposes of
this Agreement that the Clalmants' liability for an Adverse Costs Order for
Common Costs Is several and not joint and that each individual Claimant
shall only bear a share of an Adverse Costs Order for Common Costs,
calculated as the following fraction (save if paragraph 12.10.3 below
applies):
12.10.1, the numerator is the value of the Individual Claimant's claim, as
estimated by the Solicitors as at the time of the closure of the
Group Litigation Order (GLO) register, (of If no GLO is made, a
cut-off date determined and notified by the Sollcltors], excluding
any consequential loss of opportunity claims;
12,10.2, the denominator Is the value of all the Claimants’ clalms as
estimated by the Sollcitors as at the time of the closure of the
Group Litigation Order (GLO) register, (of If no GLO is made, a
cut-off date determined and notified by the Solicitors], excluding
any consequential loss of opportunity claims.
12.10.3. If at any time any of the figures relevant for the calculation in
clauses 12.10.1 and 12.10.2 immediately above Is not
ascertainable (e.g. If It is sought prior to the estimates In those
clauses being available and/or In the absence of any of the
relevant figures), the liability for an Adverse Costs Order will in
those circumstances (and those clrcumstances alone) shall be
equal for each Claimant.
12.10.4, Following resolution of all the Claims, the lability of each
individual Clalmant In respect of an Adverse Costs Order for
Common Costs shall still be determined (and thus crystallised) by
the calculation in clauses 12.10.1 and 12.10.2, save that In each
respect the calculations shall If necessary be adjusted by
reference to the actual amounts ordered or agreed to be payable
to the Individual Claimant and the actual amounts ordered or
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12.14.
12.12.
agreed to be payable to all the Claimants respectively Instead of
the estimated figures,
(“the Proportlonate Share")
The Claimants Instruct the Solicitors to apply to the Court for an order
reflecting the Proportionate Share, subject to the Solicitors’ advice not to do
so. In the absence of such an application, or where no such Court order is
made, the Claimants each accept that any Claimant who Is required or
ordered to pay a share greater than their respective Proportionate Share
shall be entitled to recover the difference from the remaining Claimants, and
the Claimants indemnify one another to such an extent.
In contrast, In relation to an Adverse Costs Order, Individual Claimants are
each llable for 100% of the Individual Costs in respect of their individual
Claims,
Claimants’ Obligations
13.1,
13.2,
The Parties recognise that the Sollcitors must at all times comply with their
duties under the Solicitors Code of Conduct 2011 (and any subsequent
replacement or additional code of conduct) to act Independently and In the
best interests of the Clalmants and in accordance with thelr other
professional duties, Nothing In this Agreement entitles Therium to Interfere
In the conduct of the Claim and/or the Proceedings.
The Claimants shall:
13.2.1, _ instruct the Solleitors to provide Therlum, prior to execution of this
Agreement, with a reliance letter substantially in the form of that
annexed to this Agreement at Appendix 2:
13.2.2, irrevocably Instruct the Solleitors and Counsel to conduct the
Proceedings in accordance with the procedural rules applicable In
the Court and comply with any judgment, order or award made in
the Proceedings;
13.2.3, Irrevocably Instruct the Solicitors to provide Therlum with any
documents or Information relating to the Claim and Proceedings
as may be reasonably requested by Therlum;
13.2.4, Irrevocably instruct the Solicitors to provide Therium with regular
updates, Including as to any potential or suggested changes,
with respect to the Project Plan;
13.2.5, irrevocably Instruct the Solicitors to provide Therium, Insofar as is
reasonably practicable and proportionate, with coples of draft
pleadings, witness statements and significant correspondence,
prior to Issue;
‘13.2.6, Irrevocably Instruct the Sollcitors to report to the Claimants as a
body of the facts underlying each Claimant's claim, Including the
facts stated In the evidence disclosed by the Defendants,
provided that doing so 's consistent with Its and thelr Implied
obligation to the Defendants only to use the documents disclosed
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13.2.7,
13.2.8.
13.2.9.
13.2.10.
13.2.11.
13,2.12.
13.2.13,
in the Proceedings for the purpose of the Proceedings and
provided that the Individual Clalmant does not specifically request
that their anonymity be preserved,
Irrevocably instruct the Solicitors to disclose to any other
Claimant, the Committes and Therlum the terms of any offer to
settle made to any individual Clalmant.
irrevocably instruct the Solicitors to use Information or documents
derived from a Claimant's individual claim In any other Clalmant's
claim or In the Proceedings as a whole, If the Solicitors so advise.
irrevocably instruct the Solicitors, in satisfaction of the Solicitors’
duty to report to the Claimants, to report only to the Committee,
for reasons of practicality and strategic confidentiality and given
the risk of unintentional dissemination to the Defendants,
irrevocably instruct and authorise the Solicitors to take such steps
and perform such actions as may be required and/or desirable In
order to perform and/or give effect to this Agreement, including
discharging any obligations of the Claimants on the Claimants’
behalf as their agent in all respects;
through Irrevocable Instructlons to the Solicitors and/or on its own
account:
(a) keep Therium promptly Informed of any significant
developments in the Proceedings (including any
settlement discussions, any offers received and any
Information, evidence or advice coming to the attention of
the Claimants or the Solicitors which may be material
elther to the prospects of success of the Claim or of
enforcing any judgment or award), Including any material
adverse change in tho prospects of success or if tho
prospects of success have deterlorated to a level where
the case Is unlikely to be successful; and
(b) make a monthly summary report In such form as Therium
may reasonably require to Therlum regarding the overall
progress and conduct of the Proceedings, the prospects of
success of the Claim, the Costs incurred against the
Project Plan and the expected exposure to adverse costs;
comply with the terms of the Legal Expenses Insurance (Including
as to payment of any premium as and when due) and any duty
owed to the Insurer providing such cover, not take or omit to take
any step which might potentially lead to withdrawal, avoldance or
cancellation of cover, and supply to Therium a copy of any
correspondence from the Legal Expenses Insurance provider
threatening to withdraw or withdrawing cover;
take and follow the legal advice of the Solicitors and Counsel at
all appropriate junctures, Including whether it would be
appropriate to make or accept any offer to settle the Claim;
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13.5,
13.7.
13,2.14. co-operate fully and at all times throughout the proceedings with,
and promptly provide such instructions and assistance to, the
Solicitors and Counsel as they may require for pursuing the
Clalm, Including providing, or procuring the provision of,
documents In the possession or control of the Clalmants or any
subsidiaries or associated companies of the Claimants and, in so
far as advised by the Solicitors or Counsel, Including providing
access to witnesses for the purpose of preparing witness
statements and procuring the attendance of those witnesses at
trial to give evidence on the Claimants’ behalf;
43.2.15. give reasonable notice of and permit Therium, where reasonably
practicable, to attend as an observer at internal meetings which
Include meetings with Counsel and experts and send an observer
to any mediation or hearing relating to the Claim; and
The Claimants hereby irrevocably instructs the Solicitors to notify Therlum in
the event that the Claimants breaches the Claimants’ obligations under this
Agreement Including but not limited to:
13.3.1. revoking its Instructlons made pursuant to clauses 13.2 and this
clause 13,3;
13.3.2, threatening to cease or ceasing to Instruct the Solicitors or
Counsel in its dispute;
13.3.3. disputing any invoice;
13.3.4. falling to follow the advice of the Solicitors or Counsel In any
material way; or
13.3.5. where the Claimants has made any material misrepresentation or
non-disclosure In its application for funding or otherwise during
the course of the operation of this Agreement.
The Parties agree not to do or permit to be done anything likely to deprive
each other of any benefit for which the other has entered into this
Agreement.
Therlum acknowledges the Claimants’ right to seek advice In relation to the
Claim from whichever solicitors or counsel they may choose. In the event,
however, that the Solicitors and/or Counsel cease to have conduct of the
Claim, then the Claimants shall obtain Therlum’s consent to the instruction
of any alternative solicitors and/or counsel proposed by the Claimants
before they are instructed,
The Claimants agree that If Therlum requires any advice given by the
Solicitors to the Clalmants In respect of the Claim and/or the Proceedings to
be confirmed by Counsel, the Claimants will Instruct the Solicitors to instruct
Counsel to provide an opinion to the Claimants on such advice and to
provide a copy of such opinion to Therium. The cost of such opinion shall be
Reasonable Costs and deemed ta be included within the Project Plan save
that the total amount of the Committed Funds shall remain unaffected.
For the avoldance of doubt, subject to Therium's rights to termination
pursuant to clause 20, nothing In this Agreement shall permit Therium to
20
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14.
16.
Appeals
14.41,
14,2,
Recovery
override any advice given by the Solicitors or Counsel to the Claimants.
This Includes any opinion given pursuant to clause 13.6 of this Agreement.
If Therium agrees to provide funding In respect of an Appeal (there being no
obligation on it to do so), then the Claimants agree to Instruct the Sollcltors
and Counsel to act on the Appeal,
Where Therium elects not to provide funding In respect of the Costs of any
Appeal:
14.2.4,
14.2.2.
14.2.3.
14.2.4,
the Clalmants shall not be obliged to pursue or defend the Appeal
but, if they do so, shall comply with their obligations set out In
clause 13;
subject to any contrary order of the Court and its right to be
Indemnified by the Claimants, Therium shall have no liability for
any Adverse Costs Order made in relation to the Appeal; and
if the Appeal was brought by the Clalmants and the Clalm
Proceeds are reduced as a result of the Appeal, the Contingency
Fee shall be calculated by reference to the amount of the Claim
Proceeds immediately prior to the Appeal,
For the avoidance of doubt, If the Appeal was brought by the
Defendants and the Claim Proceeds are reduced as a result of
the Appeal, the Contingency Fee shall be calculated by reference
to the amaunt of the Claim Proceeds as reduced by the Appeal.
Where Therium elects to provide funding In respect of the Costs of any
Appeal;
14.3.1.
14.3.2.
14.3.3,
14.3.4,
clause 14.2.1 will apply;
clause 12 shall apply in relation to any order for costs relating to
the Appeal;
if the Claim Proceeds are reduced as a result of the Appeal then
the Contingency Fee due to Therlum shall be recalculated to
reduce the amount due to Therium following the Appeal; and
following recalculation in accordance with clause 14.3.3, Therlum
shall repay any sums pald to It In excess of Its entitlement under
thls Agreement.
The Claimants shall uso Its best endeavours to cause any Claim Proceeds to be
recovered as quickly as possible,
Security for costs
16.1.
Where specified in the Project Plan or as otherwise agreed, In the event of
an order of the Court that the Claimants shall provide security for the costs
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16.3,
of a party to the Proceedings, Therlum will discharge that order to the
satisfaction of the Court.
The Claimants agree to hold the Legal Expenses Insurance policy and all
proceeds payable under It on trust for Therlum throughout the Trust Perlod
‘on terms that Therlum shall be entitled to such part or all of any proceeds of
the Legal Expenses Insurance which become payable as a consequence of
an Adverse Costs Order as shall be equal to the amount of any security
posted by Therlum pursuant to clause 16.1 used to discharge the Claimants’
liabllity (elther entirely or in part) In respect of any Adverse Costs Order.
The Claimants agree that within 2 Business Days of whichever Is the later
of
16.3.1. the date on which this Agreement Is executed; or
16.3.2. the date on which the Legal Expenses Insurance policy comes on
tisk, the Claimants will send to the Insurer(s) providing the Legal
Expenses Insurance a written Notice of Interest In duplicate for
noting on the insurer's records and will provide a copy of such
Notice of Interest, duly acknowledged by the insurer(s), to
Therlum within 5 Business Days of receipt of the same by the
Claimants.
Treatment of Claim Proceeds
ATA.
17.3,
17.4,
The Claimants agree to hold any Claim Proceeds received by them, or by
the Solicitors on thelr behalf, upon trust for Therlum throughout the Trust
Perlod on terms that Therlum shall be entitled to such part of the Claim
Proceeds as shall be equal to the total of all amounts due under the terms of
this Agreement to Therium (as the same may be reduced in accordance with
the Priorities Agreement).
The Parties agree that any Claim Proceeds received in monetary form shall
be paid into the Solicitors’ client account Immediately upon receipt. In the
case of any Claim Proceeds recelved In non-monetary form, the Claimants
shall aither deliver the Claim Proceeds to the Solicitors or pay to the
Solicitors as soon as Is reasonably practicable the market value of the Claim
Proceeds determined in accordance with clause 17.3,
if the Claimants receive any Non-Monetary Proceeds, the Partles agree that
such Non-Monetary Proceeds shall be valued by an Independent valuer
agreed by the Partles with the cost of that valuation to be met by the
Claimants. The Parties shall use their respective reasonable endeavours to
agree on the appointment of the independent valuer and agree to his terms
of appointment. Where the Partles cannot agree on the identity of the
independent valuer within 20 Business Days of recelpt of the Non-Monetary
Proceeds, the President of the Law Society from time to time shall be
requested by any of the Parties to recommend a valuer who shall be the
Independent valuer for the purposes of this clause and clauses 13.4 to 13.7
Inclusive.
The Partles shall be entitled to make written submissions to the independent
valuer (provided such submissions are recelved by the independent valuer
within 10 Business Days of his appointment) and shall use their reasonable
endeavours to provide the independent valuer with such assistance and
22
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17.6.
ATT.
17.9.
17.40.
AMAL.
documents as the Independent vatuer reasonably requires for the purpose of
reaching a determination as to the value of the Non-Monetary Proceeds.
To the extent not provided for by clause 17.4 above, the independent valuer
may, In his reasonable discretion, determine such other procedures to assist
with the conduct of the determination as he considers Just or appropriate,
Including (to the extent he considers necessary) Instructing professional
advisers to assist him in reaching his determination.
{n making his determination the independent valuer will act as an expert and
not as an arbitrator. The Independent valuer shall prepare a written
determination and give notice (Including a copy) of that determination to the
Parties within 2 months of the matter belng referred to him. The Independent
valuer's written determination on the matters referred to him shall be final
and binding on the Partles in the absence of manifest error or fraud.
If the independent valuer dies or becomes unwilling or unable to act, or does
not deliver his determination within the time required by clause 17,6 above
then either party may apply to the President from time to time of the ICAEW
to discharge the independent valuer and to appoint a replacement
Independent valuer and clauses 17.3 to 17.7 shall apply in relation to the
new independent valuer as If he were the first independent valuer appointed.
On receipt of all Claim Proceeds (following resolution of the last of the
Claims), the Claimants shall Instruct the Solicitors (for which purpose the
Solicitors shall be hereby deemed to be instructed) to provide Therium with
such information as Therlum reasonably requires to enable Therlum, or the
Solicitors at Therium's request, to prepare a draft Clalm Proceeds Account
which Therium (or the Solicitors as the case may be) shall deliver to. the
Solicitors s to the Priorities Agreement for agreement.
The Clalms Proceeds shall be apportioned (within the Claims Proceeds
Account and subject to any adjustment pursuant to clause 3.3) between the
Claimants by applying the same fraction as set out in clause 12.10 (but
using the actual value of each Claim, rather than estimated). The Clalms
Proceeds Account shall specify each Claimant's proportionate share of the
Net Claims Proceeds following payment of all sums to be distributed in
priority to the Claimants In accordance with the Priorities Agreement
Once the draft Clalm Proceeds Account is agreed or deemed to be agreed
pursuant to the Priorities Agreement (whichever is the earlier), the Partles
agree that the Solicitors shall forthwith pay out the Claim Proceeds in
accordance with the agreed Claim Proceeds Account.
Therium shall have the right, but not the obligation, to request an interim
draft Claim Proceeds Account for the purpose of determining whether or not
an Interim and partial distribution can be made to one or more of the
Claimants at any point prior to the final agreement of the Clalm Procesds
Account. Therium shail have the right but not the obligation to agree to the
making of such an Interim partlal distribution of Claim Proceeds, and If so,
the amount and timing of such distribution. The apportionment of any such
interim distribution shall be in accordance with clause 17.9,
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17.12.
17.43.
17.14,
Any damages awarded against the Claimants in respect of a counterclaim
funded pursuant to clause 4.1 shall be deducted from the Claim Proceeds:
for the purposes of calculating the distribution under the Claims Proceeds
Account, regardless of whether Therium has funded the cost of defending
the counterclaim.
{f any payment due to Therlum from the Clalm Proceeds Is delayed due to
action or fallure to act on the part of the Claimants, the Claimants shall
compensate Therlum for the delay in making payment by paying to Therlum
Interest on the sum delayed for the period of the delay calculated in
accordance with clause 3.2.
Any dispute arising under clauses 17.8 to 17.13 herein shall be resolved in
accordance with the procedure set out in clause 4 of the Priorities
Agreement,
Privilege and Agency
18.1.
18.2.
The Claimants hereby appoints Therium as the Claimants’ agent for the sole
purpose of holding, reviewing and commentating on the documents and
information provided, Including any privileged documents and Information,
and deciding whether to fund the Proceedings. The express and only terms
of that agency were and are that Therlum agrees to take all reasonable
steps in respact of those documents and that information to:
18.1.1. maintain their confidentiality;
18.1.2, protect and not walve any privilege attaching to them;
18.1.3. keep them secure and safe; and
18.1.4, use them only in connection with Therium's business as a
litigation funder in connection with the Proceedings to enable the
parties to decide whether Therlum should be involved In funding
and continuing to fund the Proceedings and in accordance with
clause 16 below,
The Claimants and Therlum do not walve any legal professional privilege,
common interest privilege or other privilege or protection attaching to any
documents and Information disclosed fo Therium. Any privileged Information
and documents disclosed at any time to Therium have been or will be
disclosed on the additional basis that Therlum has, or will have, a common
Interest In the pursuit and success of the Proceedings and will at all times
take all reasonable steps to maintain that privilege.
Therlum shall, for the purposes of clauses 18.1 and 18.2, Include Therlum’s
directors, officers, employees, litigation advisers and sub-litigation advisers,
attorneys, consultants, solicitors, counsel, associated companies, Insurers,
shareholders and agents.
Confidentiality
19.1.
Without prejudice to clause 18 above, the Parties agree to keep confidential
and, where appropriate, maintain any privilege belonging to the Clalmants,
In all documents and Information supplied by the Clalmants, Therlum or the
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19.3.
19.4,
Solicitors, Including (unless otherwise agreed) the existence and / or terms
of this Agreement. The Claimants agree that they will not disclose to any
third party who Is not either a Clalmant or a professional advisor of a
Claimant with a duty of confidentiality to that Claimant any advice received
from the Solicitors, or any other communication recelved from the Solicitors
or from the Committee in connection with the Funding Agreements or the
Proceedings. It is agreed that the provision of privileged documents does
not amount to any waiver of privilege, and the Parties shall not use these for
any purpose other than In respect of this Agreement, except a purpose to
which the Partles have consented or as required by law or regulation. The
Claimants agree that Therlum may disclose such documents and
Information:
19.1.1. to its advisers, Including litigation and Investment advisors,
auditors, brokers, legal advisers, investors and potential
Investors, Insurers and potential Insurers;
19.1.2, where Therium is under a legal or regulatory obligation to make
such disclosure, but limited to the extent of that legal obligation;
19.1.3, to the extent that it Is already In the public domain (other than as.
a result of Therlum's breach of this Agreement);
19.1.4. with the prior written consent of the Claimants; or
19.1.5. to the extent necessary to take legal action to enforce Therlum’s
rights under this Agreement or to defend such action.
Therlum shall procure that any persons receiving confidential documents or
information pursuant to sub-clause 19.1.1 shall comply with the obligations
Imposed on Therium pursuant to sub-clause 19.1.
Nothing In this Agreement shall prevent Therium Instructing one or more
agents to undertake any actlon or review documents, evidence or
information which Therium would be entitled to undertake pursuant to this
Agreement save that Therlum shall procure that any agent acting on Its
behalf shall comply with the obligations imposed on Therlum by clause 19.1.
Therlum will immediately Inform the Claimants of any request or order to
disclose Its privileged documents or any other privileged Information held by
Therium, except where Informing the Claimants would contravene any law
or regulation,
The Claimants agree that the duty of confidentiality owed to them
Individually by the Solicitors In respect of:
19.5.1, — the facts of their individual claims disclosed to the Solicitors by
each Claimant; and
19.5.2. any documents produced by them or to them on disclosure,
shail be waived as against the other Claimants and the Committee Insofar
as the Solicitors consider it necessary or desirable to compare the facts of
individual claims for the purposes of advising on and conducting the
common aspects of the individual claims In the Proceedings, and shall be
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19.6,
waived as against the Solicitors provided the Claimants’ confidential
Information Is shared on terms of confidentiality and without any walver of
privilege,
If a Claimant ceases to be a party to this Agreement, his duty of
confidentiality shall continue with full force and effect.
20, Termination
20.1.
20.2.
20.3,
Without prejudice to clause 8.1 and subject to earlier termination of this
Agreement pursuant to clauses 20.2 to 20.5, this Agreement shall continue
In full force and effect until payment of any and all sums due to Therlum
pursuant to thls Agreement and in any event clauses 4 (Interpretation), 2 & 3
(Committee), 5.2 (Payment Terms and Interest), 8.2, 8.3 and 8.4 (Conditions
Precedent and Warranties), 9 (Claimants’ costs, 10 (Costs Sharing) 12
(Adverse Costs Orders), 13 (Claimants’ Obligations) 16.2 (Securlty for
Costs), 17 to 19, 21 to 33 shall continue In full force and effect
notwithstanding Termination of this Agreement. For the avoidance of doubt,
the options at clauses 4.3, 4.4 and 4.5 above shall not remain open for
exercise by Therlum after termination of this Agreement; but any option
exercised by Therium prior to termination will continue In full force and
effect, subject to, and in accordance with, the remainder of this clause,
The Claimants and Therlum may at any time agree, by mutual consent In
writing, to suspend or terminate this Agreement In which event they shall
serve Notice of such suspension or termination on the Solicitors.
If, Therium reasonably ceases to be satisfied as to the merits of the Claim or
Therium reasonably believes that the Claim Is no longer commercially
viable, then Therlum shall be entitled to suspend until further notice by
Therlum or terminate this Agreement by giving 5 Business Days’ Notice to
the Claimants. Following such termination or during the porlod of
suspension, Therium shall have no further liability to fund the Reasonable
Costs but this shall not affect any accrued rights or entitlements of Therlum.
In the event that Therium reasonably considers that there has been a
material breach of thls Agreement by the Claimants, Therlum may notify the
Claimants that Therlum requires the Claimants to remedy the breach within
20 Business Days. In the event that the breach is not remedied within that
period, Therium shall be entitled to suspend until further notice by Therium
or terminate this Agreement forthwith by giving Notice to the Claimants,
copied to the Solicitors. Following such termination or during the period of
suspension under this clause 20.4, Therlum shall have no further Ilability to
fund the Reasonable Costs. Within 6 Business Days of termination under
this clause 20.4, the Claimants shall pay to Therlum the Reasonable Costs
Sum calculated as at that date, together with interest calculated in
accordance with clause 5.2 from the date of this Agreement to the date of
payment. Following such termination Therium shall remain entitled to the
Reasonable Costs Sum and the Contingency Fee upon Recovery and, for
the purpose of calculating this, Therium shall be deemed to have exercised
the options set out above at clauses 4,3 to 4.6 inclusive. For the purposes of
this clause 20.4, a material breach shall include, but not be limited to, any
breach of any of the warranties set out In clauses 8.2 to 8.4, save for any
breach that does not materially affect the contemplated litigation or the
anticipated financial benefit for which Therlum entered this agreement,
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21,
22,
23,
20.5.
20.6,
20.7,
In the event of a material breach of this Agreement by Therlum, the
Claimants shall notify Therlum that the Claimants requires Therlum to
remedy the breach within 20 Business Days. in the event that the breach is
not remedied within that period, the Claimants shall be entitled to terminate
this Agreement forthwith by giving Notice to Therlum, copied to the
Solleltors, Following such termination Therlum shall remain entitled to the
Reasonable Costs Sum, calculated as at the date of termination, upon
Recovery. For the avoidance of doubt, following such termination Therlum
shall have no future entitlement to the Contingency Fee.
In the event of termination of this Agreement pursuant to clauses 20.2 to
20.5, the Clalmants shall within 20 Business Days use all reasonable
endeavours to put in place alternative arrangements to discharge any order
for securlty for costs and, at the end of the 20 Business Days period,
Therlum shall be entitled to terminate any such arrangements made on the
Claimants’ behalf pursuant to clause 14.1. Therium shall, on payment by the
Claimants to Therlum of an amount equal to the amount (If any) of any
security for costs posted by Therlum which has been used to discharge the
Claimants’ liability In respect of any Adverse Costs Order, provide the
Claimants with a written Notice of Release of Interest in respect of the Legal
Expenses Insurance.
Termination of this Agreement shall not affect any accrued rights or
labllities, including, without limitation, any arlsing under any Adverse Costs
Indemnity granted pursuant to Clause 12, nor will It affect the coming into
force or the continuance in force of any provision which Is expressly or by
implication Intended to come Into or continue in force on or after such
termination, including but not limited to clauses 4,1, 9, 11 and 13 including in
particular Its right to information, to continue to hold Its security and to be
paid any amounts due to it including the Contingency Fee as provided for at
clause 20.4,
Contracts (Rights of Third Parties) Act
A person who Is not a party to this Agreement has no right under the Contracts (Rights
of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement.
Data Protection
In performing their respective obligations and exercising thelr respective rights under
this Agreement, the parties agree to comply with the terms of the Data Protection Act
1998 and all regulations published pursuant to that Act.
Assignment
23.1,
The Partles agree that Therium shall be entitled to assign to any group
company any or all of its rights, Interests and obligations pursuant to this
Agreement upon giving 5 Business Days’ Notice of Its Intentlon to do so to
the Claimants.
Save as provided in clause 23.1, a Party shall not assign or transfer this
Agreement or any of its rights under it, or purport to do any of the same, nor
sub-contract any or ail of Its obligatlons under this Agreement without having
first obtained the prior written consent of the other Party.
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24,
26.
26.
27.
28
29.
Varlation
No variation to this Agreement shall be valid unless It Is In writing and signed by the
Partles’ authorised signatories.
Walver
No forbearance or delay by a Party In enforcing Its rights shall prejudice or restrict the
rights of that Party, and no waiver of any such rights or of any breach of any
contractual terms will be deemed to be a waiver of any other right or of any later
breach.
Invalidity and severabllity
If any provision of this Agreement is or becomes Invalid, Illegal or unenforceable
whether In whole or in part or in relation to any of the Partles to the Agreement, the
valldity, legality and enforceability of the remainder of the Agreement, or Its validity and
enforceability as agalnst other parties, shall not be affected In any way. The Partles
shail nevertheless nagotlate in good falth In order to agree the terms of a mutually
satisfactory provision, achieving so nearly as possible the same commercial effect, to
be substituted for the provision so found to be invalid, illegal or unenforceable and
each Party shall take any step required, Including executing any further or other
document, in order to give effect to the Parties’ Intention in entering tnto this
Agreement.
Most Favoured Nation
Should the Claimants enter into any subsequent agreement with any other person to
provide funding In relation to:the Claim which provides for benefits or terms more
favourable than those contained in this Agreement, then the Agreement shall be
deemed to be modified, In whole or In part, at the election of Therlum, to provide
Therlum with those more favourable benefits and terms. The Claimants shall notify
Therium promptly of the existence of such more favourable benefits and terms and
Therium shall have the right to recelve the more favourable benefits and terms with
Immediate effect from that notice. If requested In writing by Therium, the Claimants
shall amend this Agreement to contain the more favourable benefits or terms.
Succession
This Agreement shall be binding on the Parties, their successors and assigns and the
name of a Party appearing herein shall be deemed to include the names of any such
successor or assign,
Notices
29.1. Any Notice to be served under this Agreement shall be In writing and may
be delivered by hand or sent by pre-paid first class recorded delivery post to
the Party to be served at the relevant address set out in this Agreement or
any such other address as the Party to be served may have notified to the
other Party for the purposes of this clause 29.1.
29.2. For the purpose of service of Notice or other documents on the Claimants
(Including but not IImited to service of proceedings), the Claimants agrees
that service on the Solicitors shall be valld and adequate service on the
Claimants,
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30.
St.
32.
29.3, Any Notice shall be deemed to have been served:
29.3.1. If delivered by hand, at the time of dalivery to the Party or
Solicitors; or
29.3.2. If posted, at 10,00am on the second Business Day after it was
posted to the Party or Solicitors.
29.4. In proving service of a Notice It shall be sufficient to prove that delivery by
hand was made or that the envelope containing the Notice was properly
addressed and posted as a pre-paid first class recorded delivery letter,
Counterparts
This Agreement may be signed in any number of counterparts, each of which taken
together shall be deemed to constitute one and each of which Individually shall be
deemed to be an original, with the same effect as if the signature on each counterpart
were on the same original,
Non-reliance and exclusion of liability
The Clalmants accept and agree that the Claimants has taken such legal advice as the
Claimants requires prior to entering into this Agreement and has not relled on Therium,
Its directors, officers, shareholders, Investors or advisers (including but not limited to Its
ligation adviser and litigation sub-adviser) In deciding whether or not to enter Into this
Agreement and in deciding whether or not to bring the Proceedings. By entering Into
this Agreement, the Claimants agrees and accepts that neither Therlum nor Its
directors, officers, shareholders, investors nor advisers (Including but not limited to Its
litigation adviser and litigation sub-adviser) owe any obligation, responsibility or duty to
the Claimants save as expressly set out in thls Agreement and the Priorities
Agreement and do not accept any lability to the Claimants or any third party
whatsoever save as expressly set out In this Agreement and the Priorities Agreement.
Dispute Resolution
32.1. The Parties agree that in the event of any dispute between Therium and the
Claimants relating to:
32.1.1, settlement of the Claim or any of the Claims; or
32.1.2, _ termination of this Agreement under clause 20;
alther party shall be entitled to direct the Solicitors to refer the dispute to an
independent Queen's Counsel, whose identity is to be agreed between the
Parties or, In leu of such agreement, to be nominated by the Chairman of
the Bar Council. Such Queen's Counsel shall be deemed to be jointly
instructed by both parties,
32.2. In the event of a dispute over settlement of the Claim, the Queen's Counsel
shall bé Instructed to provide an opinion as to the appropriate level of
settlement. The Partles agree that the Queen's Counsel’s opinion on
settlement shall be final and binding on each one of them and the Clalmants
shall instruct the Solicitors and Counsel accordingly. {n the event of
Therium making a reference to Queen's Counsel in respect of settlement,
the Claimants shall not take further steps to settle the Claim without the
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consent of Therlum until the Opinion Is obtained.
32.3. In the event of a dispute over termination of this Agreement, the Queen's
Counsel shall be Instructed to provide an opinion on the rights and
‘entitlements of each of the Parties, to Include the reasonableness or
otherwise of Therlum’s views under clause 20.3. The Parties agree that the
Queen's Counsel's opinion on this issue in dispute shall be final and binding
‘on each one of them.
32.4, In giving any opinion pursuant to clauses 32.2 and 32.3 above, Queen's
Counsal shall also be instructed to determine which one or more of the
Parties should bear Queen's Counsel's fees of giving the Opinion (and, if
more than one Party, the shares in which they are each to bear those fees)
and the Parties agree to be bound by this determination as to liability for the
Queen's Counsel's fees.
33. Law and jurisdiction
This Agreement Is governed by and Is to be construed In accordance with the law of
England and Wales. Save for any dispute resolved finally pursuant to clause 32 above,
any dispute arlsing out of or connected to this Agreement, Including the validity or
termination thereof, shall be finally resolved by a sole arbitrator under the arbitration
rules of the London Court of International Arbitration (the "LCIA"). The seat of the
arbitration shall be London, the language of the arbitration shall be English and the
arbitrator shall be a practising member of the English Bar. The arbitrator shall be
appointed by the agreement of the Parties provided that, If the Partles cannot reach
agreement on the appointment of the arbitrator within 30 days, then any Pariy may
apply to have the arbitrator appointed by the LCIA.
IN WITNESS of which the Partles have each executed this Agreement on the date shown
above
Signed ..... see woes
For and on behalf of THERIUM LITIGATION FUNDING IC.
Name: Seema Misra
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SCHEDULE A — List of Claimants.
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SCHEDULE B
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APPENDIX 4
Project Plan
[Stage [Date [incurred and estimated costs
33
To:
Dear Sirs,
Re:
APPENDIX 2
Specimen letter from Solicitors
TO BE PRINTED ONTO FREETHS LLP's LETTERHEAD
Therium Litigation Funding IC
Charter Place
23/27 Seaton Place
St Heller
Jersey
JE4 1
The Individuals listed In the attached schedule and parties to a funding agreement
with Therlum Litigation Finance IC (“the Claimants") v the defendants set out In the
Clalm Form attached (“the Claim")(“the Clalm”),
I refer to the above Claim In which we (“the Solicitors") are acting for the Claimants,
Therium Litigation Funding IC (‘Therlum") has entered into a funding agreement
(‘the Funding Agreement") and priorities agreement (“the Priorities Agreement’) In
which Therium agrees to fund the Claimants’ costs and disbursements on the terms
sot out in those agreements.
At clause 8.2 of the Funding Agreement, the Claimants acknowledges that Therlum
has entered Into the Funding Agreement solely based upon the Information and
materials made available to Therlum and Its representatives prior to the
commencement date of the Funding Agreement and that, If any information,
documents and/or materials are Inaccurate, untrue, Incomplete or have not been
disclosed to Therium or Its representatives, that this may affect Therlum's decision
to provide (or continue to provide) funding under the funding Agreement. The
Claimants warrant to the best of the Clalmants’ knowledge and bellef that the
Information and material made available to Therium and its representatives Is
accurate, complete and true In all material respects and that they have not failed to
disclose any information, documents or materlal which would be relevant to
Therium's decision to enter Into, and remain bound by, the Funding Agreement.
Save as provided elsewhere In this letter, Insofar as the information, materials
and/or documents made available to Therlum and Its representatives prior to
entering Into the Funding Agreement, consist of Information, documents or advice
to the Claimants provided by the Sollcltors, the Solicitors acknowledge and accept
that they have assumed a duty of care to Therlum in respect of that Information
and/or advice, and the Sollcltors agree that Therlum has not conducted any
Independent Information gathering exercise, has not sought separate legal advice
In relation to the merits of the Clalm brought by the Claimants and Therlum has
relled upon the Information, documents and advice to the Clalmants provided by
the Solicitors, Furthermore, in continuing to fund the Clalm, the Solicitors agree and
acknowledge that Therium will continue to rely upon the Solicitors In respect of the
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advice the firm provides to the Claimants and Its ongoing conduct of the Clalm
while instructed by the Claimants.
For the avoidance of doubt, the Solicitors have not provided to Therlum all of the
documents which have been provided to It by the Claimants, nor have the Sollcltors
provided full detalls of the information provided to them orally by the Claimants. To
that extent, the Information provided by the Solicitors to Thorium Is incomplete but,
so far as the Solicitors are aware, the Solicitors have not failed to disclose any
information documents or materlal which would be relevant to Therium's decision to
enter Into, and remain bound by, the Funding Agreement.
Furthermore, Insofar as the Solicitors accept a duty of care to Therium in respect of
the accuracy of any information, documents or advice provided, the Solicitors are
unable to warrant the accuracy of the Information provided to It by the Claimants,
Defendant or third parties or the validity of the documents so provided on which any
advice may be based. However, so far as the Solicitors are aware, the Information
provided is accurate and the documents provided are valid.
Nothing in this letter shall impose any contractual duty on the Solicitors to advise
Therlum in relation to the above Claim as a cllent of the firm. The Solicitors’ only
client in relation to the Claim is (and will remain) the Claimants In that action and, in
the event of any conflict between the Claimants and Therlum, the Solicitors shall bo
under no duty to advise Therlum, nor shall they be prevented from continuing to
advise the Claimants as a result of that conflict arising.
Yours faithfully,
Freeths LLP
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APPENDIX 3
Specimen Priorities Agreement
PRIORITIES AGREEMENT
(1) THERIUM LITIGATION FUNDING IC;
(2) VARIOUS INDIVIDUALS more particularly defined herein; and
(3) I FREETHS LLP
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THIS AGREEMENT Is made this day of 2016
BETWEEN:
(1) THERIUM LITIGATION FUNDING IC of Charter Place, 23/27 Seaton Place, St
Heller, Jersey, JE1 1UY (‘Therlum’);
(2) THE INDIVIDUALS listed as claimants in the Clalm Form (as set out in Schedule A)
who have also executed this Agreement, whether signing In manuscript or
electronically, before the Commencement Date (the “Claimants "); and
(3) FREETHS LLP of Floor 3, 100 Wellington Street, Leeds, LS1 4LT (the “Sollcitors")
individually a “Party” and together the “Parties”.
WHEREAS:
A. The Sollcltors have advised the Claimants they have a legal claim against the Post
Office Limited (the “Defendant") for inter alla damages arising out of breach of contract
(esp. Implied duty of good faith in relational contracts); breach of duty of care and subject
to receipt of evidence; breach of a fiduciary duty; decelt; and unlawful means conspiracy
» The Claimants Intend to Issue legal proceedings against the Defendant in the Queen's
Bench Division or Chancery Division of the High Court of Justice of England and Wales
(the Proceedings").
Pursuant to engagement letters and Conditional Fee Agreements (together the
“Engagement Letters”) the Solicitors act for the Claimants In relation to the Proceedings.
In consideration for Therlum entering into a funding agreement (the “Funding
Agreement’) with the Claimants to enable the Proceedings to progress, the Parties wish
to set out In this Agreement the priority order and timing for paying the sums due to each
of them from the proceeds of any recoveries made in the prosecution of the Claim,
NOW IT IS AGREED AS FOLLOWS:-
Definitions
In this Deed the following definitions shall have the following meanings:
“Agreements” means all of the Engagement Letters and the Funding Agreement
collectively;
“Base Costs” moans the base costs referred to in tho Engagement Letters or any
Conditional Fee Agreement entered Into by the Claimants and the Solicitors, any of the
Sollcitors’ profit costs (excluding success fee) remaining unpaid under the terms of tho
Engagement Letters and any of the fees (excluding uplift) remaining unpald of Counsel
(or any other counsel retained by the Solicitors in the case);
“Claim” means the Claimants’ claims and causes of action against the Defendant In the
Proceedings (and any amendment of those claims or causes of actlon) and any
enforcement action or subsequent proceedings relating thereto;
“Claims” means the Individual claims comprising the Claim
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“Claimants” means the Individuals and any other persons listed as claimants In the Claim
Form (as set out Schedule 1) as may have entered into a Deed of Adherence
substantially in the form appearing at Appendix 1, after the Commencement Date;
“Clalm Proceeds" means all and any value due to and/or received by, on behalf of, or in
lleu of payment to, the Clalmants In connection with tho Claim as a result of any
Judgment, award, order, settlement or compromise whatsoever, Including payment of any
damages, compensation, Interest, restitution, recovery, Judgment sum, arbitral award,
settlement sum, compensation payment, costs and Interest on costs, whether In
monetary or non-monetary form, before deduction of any taxes which the Claimants may
be liable to pay In respect of the Clalm Proceeds;
“Clalm Proceeds Account" means an account prepared by Therium, setting out the share
of any Claims Proceeds due to the Parties and the order of payment;
“Independent Counsel” means an Independent barrister of not less than 10 years call
who Is not and has not otherwise acted for any of the Parties In connection with the
Proceedings;
“Net Claim Proceeds" means the aggregate sum remalning for distribution under clause
3.2.4
“Notice” means a notice given In accordance with Clause 6 of this Agreement; and
“Notice of Disagreement" means a notice setting out in reasonable detail the scope,
nature of and reasons for a Party's disagreement with a draft Claims Proceeds Account
(either Interim or final).
Time of the essence
Itls agreed that, in relation to any time period specified in this Agrsement, time shall be
of the essence,
Priority for payments from Claim Proceeds
3.1. it is agreed that all sums due to any of the Parties pursuant to the
Agreements shall be paid out of any Claim Proceeds In accordance with the
terms of this Agreement until all such sums are discharged or until the Claim
Proceeds are exhausted.
3.2, It Is agreed that the Claim Proceeds shall be distributed in the following
priority order:-
3.2.4, First, to pay the Solicitors (and any Counsel Instructed by them)
such sum as are necessary to bring them up to 100% of thelr
Base Costs;
3.2.2. Secondly, to reimburse Therium for all and any sums paid
pursuant to the Funding Agreement
To the extent that the Clalm Proceeds are insufficient to
discharge in full all sums referred in sub-clauses 3.2.1 to 3.2.2
above, the Claim Proceeds shall be applied between the
Solicitors and Therium pari passu on a pro rata basis In
proportion to their entitlement to sums under those sub-clauses.
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3.2.3, Thirdly, to pay any insurance premium(s) due in respect of the
after the event Legal Expenses Insurance acquired by the
Claimants pursuant to clause 12.7 of the Funding Agreement or
otherwise,
3.2.4, Fourthly, any further sums due to the Solicitors (to the extent that
such sums are provided for In the Project Plan) and Thorium until
all their entitlements to fees pursuant to the Agreements as at the
date of distribution have been discharged in full. To the extent
that the Claim Proceeds are insufficlent to discharge sums
payable pursuant to this sub-clause in full, the Claim Proceeds
after payment of all sums referred in sub-clauses 3.2.1 to 3.2.2
above shall be applied pari passu on a pro rata basis to pay the
Solicitors and Therlum any other sums due to them under the
Agreements in accordance with this sub-clause.
3.2.5. Fifthly, any further Clalm Proceeds remaining after deduction of
the sums referred to at clauses 3.2.1 to 3.2.4 above shall be pald
to the Clalmants or as they may direct from which the Claimants
shall discharge any further llabillty they may have to any other
person In such manner as the Claimants and that person shall
agree, without further reference to the other Partles,
3.3, This Agreement Is intended to determine the priority order for distribution of
sums recovered In the Proceedings. In the event of conflict between the
terms of this Agreement and any of the Agreements, the terms of this
Agreement shall take precedence and shall determine the entitlements of
the Partles to his Agreement to the Claim Proceeds
Determination of the Parties’ rights and entitlements to the Claim Proceeds
4A, As soon as reasonably practicable after receipt of all Clalm Proceeds
(following resolution of the last of the Claims) and receipt of such information
requested by Therlum pursuant to clause 17 of the Funding Agreement to
produce a Claim Proceeds Account, Therlum, or the Solicitors at Therium's:
request, shall prepare a draft Claim Proceeds Account and serve a copy on
each of the other Parties.
4.2, The Net Claim Proceeds shall be apportioned between the Clalmants In
accordance with clause 17 of the Funding Agreement.
4.3, Unless, within 14 calendar days from the date of service of the draft Clalm
Proceeds Account (or an interim draft Claims Proceeds Account prepared
pursuant to clause 17.11), a valld Notice of Disagreement has been served
on Therium by any one or more of the Parties, the draft Claim Proceeds
Account shall be deemed to be agreed by each of the Partles and any part
of a draft Claim Proceeds Account not the subject of a valid Notice of
Disagreement served pursuant to this Clause shall similarly be deemed to
be agreed,
44, In the event that a valid Notice of Disagreement Is served In accordance
with clause 4.3 above, the Partles agree to seek to resolve that
disagreement within a further period of 14 calendar days, failing which any
remaining matters not agreed shall be referred to independent Counsel who
shall be Instructed to determine the rights and entitlements of each of the
Parties to the Claim Proceeds pursuant to the Agreements and this
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a
4.5,
46,
Warranty
Agreement, The Partles agree that Independent Counsel's determination on
this Issue shall be final and binding on each one of them.
In making any determination as to the rights and entitlements of each of the
Parties pursuant to clause 4.4 above, Independent Counsel shall also be
instructed to determine which one or more of the Parties should bear
independent Counsel's fees of making the determination (and, If more than
one Party, the shares in which they are each to bear those fees) and the
Partles agree to be bound by this determination as to flabllity for
Independent Counsel's fees.
Pending any draft Claim Proceeds Account or any part of It being deemed to
be agreed, or pending resolution of any disputed matter by Independent
Counsel, the Sollcitors shall hold the Claim Proceeds, or such part as Is not
agreed, In their client account. The Parties agree that the whole or any part
of any draft Claim Proceeds Account which Is deemed to be agreed
pursuant to Clause 4.3 above, and any determination of Independent
Counsel pursuant to Clauses 4.4 and 4.5 above, constitutes a binding and
irrevocable instruction to the Solicitors to distribute that element of the Claim
Proceeds forthwith in accordance with that whole or part of the Claims
Proceeds Account or determination, Where a Party Is directed by
Independent Counsel to meet the fees of Counsel In making a determination
under Clause 4.5, then the amount of those fees, and any VAT payable
thereon, shall be deducted by the Solicitors from any amount of the Claims
Proceeds due to that Party,
The Claimants warrant that there are no persons other than the Parties who have any
right or clalm or interest whatsoever over the Claim Proceeds In priority or ranking
equally with any of the Parties, either in whole or part and that the Claimants has
obtained all consents, waivers or releases as may be required In order to validly confer
on the Parties the rights as set out In this Agreement.
Notices
64.
6.2.
Any Notice to be served under this Agreement may be delivered by hand or
sent by pre-paid first class recorded delivery post to the Party to be served
at the relevant address set out in this Agreement or any such other address
as the Party to be served may have notified to the other Party in accordance
with this Clause 6, marked for the attention of the individuals (and/or, if
applicable the successors to their current positions) as follows:
6.1.1. In the case of the Solicitors, James Hartley of Freeths LLP Floor
3, 100 Wellington Street, Leeds, LS1 4LT;
6.1.2. In the case of the Claimants, by service on the Solicitors; and
6.1.3, in the case of Therlum, Nell Purslow of Therlum Capital
Management Limited, 77 Kingsway London, WC2B 6SR;
Any Notice shall be deemed to have been served:
6.2.1, if delivered, at the time of delivery to the Party; or
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6.2.2. if posted, at 10.00am on the second Business Day after It was
posted to the Party.
6.3, In proving service of a Notice It shall be sufficient to prove that delivery by
hand was made or that the envelope containing the Notice was properly
addressed and posted as a pre-paid first class recorded delivery letter.
6.4. if Notice Is served by means of a pre-pald first class recorded delivery letter,
the Party serving such notice shall, on or before posting the Notice, send a
copy of it by email to the receiving Party's usual email address,
Successors and assignments
This Agreement shall be binding upon and enure for the benefit of the successors-In-
title and permitted assignees of the Partles hereto.
Waiver and forbearance
No failure to exercise or delay in exercising any right or remedy under this Agreement
shail constitute a waiver thereof and no walver by any of the Partles of any breach or
non-fulfilment by any of the other Parties of any provision of this Agreement shall ba
deemed to be a waiver of any subsequent or other breach of that or any other provision
hereof and no single or partial exercise of any right or remedy under this Agreement
shail preclude or restrict the further exercise of any such right or remedy.
Variation
No variation of this agreement shall be valid unless It is in writing and signed by or on
behalf of each of the Parties hereto. .
Counterparts
This Agreement may be executed in any number of parts each of which, when
executed by one or more parties hereto, shall constitute an original document but all of
which shall together constitute one and the same Instrument.
Good Faith
Each party shall at all times deal with every other Party In good falth.
Choice of law and jurisdiction
This Agreement is governed by and Is to be construed In accordance with the law of
England and Wales. Any dispute arising out of or connected to this Agreement,
Including the validity or termination thereof, shall be finally resolved by a sole arbitrator
under the arbitration rules of the London Court of international Arbitration (the “LCIA"),
The seat of tho arbitration shall be London, the language of the arbitration shall be
English and the arbitrator shall be a practising member of the English Bar. The
arbitrator shall be appointed by the agreement of the Parties provided that, If tho
Parties cannot reach agreement on the appointment of the arbitrator within 30 days,
then any Party may apply to have the arbitrator appointed by the LCIA,
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SIGNED FOR AND ON BEHALF OF THE PARTIES:
Signed for and on behalf of
THERIUM LITIGATION FUNDING IC.
Signed by
Name:
Signed for and on behalf of
FREETHS LLP
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SCHEDULE 4
Claimant Name
(Surname, Forename(s)),
I_ Address etc
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APPENDIX 1 to the Priorities Agreement / APPENDIX 4 to the Litigation Funding Agreement
DEED OF ADHERENCE
THIS DEED OF ADHERENCE Is made on[ }20{ ]
by[
Jfofl{ ] (the Covenantor).
BACKGROUND
This deed supplements a Litlgatlon Funding Agreement dated [ _] 2016 made between (1)
Therlum Litigation Funding IC; (2)[_] and others; and a Priorities Agreement dated [ ]
2016 betwen (1) Therlum Litigation Funding IC, (2) ] and others and (3) Freeths LLP; [(as
modifled by [here set out the details of any instrument modifying the original agreement)] (the
Agreements).
COVENANTS
1.
The Covenantor confirms that [he][she] has been supplied with a copy of the
Agreements and will be deemed with effect from the date appearing above to be a
party to the Agreements as a Claimant (as defined In the Agreements).
The Covenantor covenants with each of the other parties to the Agreements from time
to time to observe, perform and be bound by all the terms of the Agreements which are
capable of applying to the Covenantor as a Claimant and which have not yet been
performed and any rights and obligations of the Claimants in the Agreements which are
capable of applying to the Covenantor shall be construed as rights and obligations of
the Covenantor and the Covenantor covenants with each of the other partles to the
Agreements to observe, perform and be bound by all such obligations.
The Covenantor confirms that notice may be given to [him][her]lt at the following
address:
Address: {]
This deed and any disputes or claims arising out of or in connection with Its subject
matter or formation (including non-contractual disputes or claims) shall be governed by
and construed In accordance with the laws of England.
Any disputes or claims arising out of or in connection with this deed, including the
validity of termination of this deed, shall be finally resolved by a sole arbitrator under
the arbitration rules of the London Court of Intemational Arbitration (the LCIA). The
seat of arbitration shall be London, the tanguage of the arbitration shall be English and
the arbitrator shall be a practising member of the English bar, The arbitrator shall be
appointed by the agreement of the Company and the Covenantor provided that, if
Therlum and the Covenantor cannot reach agreement on the appointment of the
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arbitrator within 20 Business Days, then elther Therlum or the Covenantor may apply to
have the arbitrator appointed by the LCIA.
This deed has been executed and delivered as a deed on the date stated at the beginning of
it.
[Insert appropriate execution block]
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