Therium Litigation Funding A IC ("Therium"), the applicant in these proceedings, applies for an asset preservation/freezing order against the Respondent ("Bugsby"). The application is made pursuant to section 44 of the Arbitration Act 1996. A similar application for an asset preservation order (but not a freezing order) was made on a without notice basis by Omni Bridgeway (Fund 5) Cayman Invt. Ltd ("Omni") and was granted by Cotter J on 2 October 2023 following an out-of-hours application. Therium gave notice of its separate application, and I ordered that it be listed to be heard together with the return date for Omni's application which had been fixed for Monday 16 October 2023. Both Therium and Omni are litigation funders who each made a litigation funding agreement ("LFA") with Bugsby.
The skeleton arguments served on behalf of Therium, Bugsby and Omni prior to the hearing raised a large number of disputes. In addition to the applications of Therium and Omni, there was a separate application issued by Bugsby to set aside the injunction granted by Cotter J. Bugsby's former solicitors, Stewarts Law ("Stewarts"), had also issued an application for, in substance, a similar asset preservation order, but on a different basis. As will become apparent below, each of Therium, Omni and Stewarts makes claims in respect of settlement monies which Bugsby had received following the compromise of a dispute with two entities in the Legal & General Group ("L&G").
A central question raised by Bugsby, in response to the applications of both Omni and Therium, was whether there was a serious issue to be tried in relation to the proprietary claims which they asserted. Bugsby's key defence to those proprietary claims is based on the very recent decision of the Supreme Court in R (PACCAR) v Competition Appeal Tribunal  UKSC 28 ("PACCAR"). That case decided, contrary to the views apparently held by many in the industry (and contrary to both decisions in the case below) that third party litigation funders, whose remuneration was to be by way of a share of any damages recovered, were providing "claims management services" within the meaning of section 58AA (3) of the Courts and Legal Services Act 1990 ("the 1990 Act"). That section provides, in relevant part: