27 September 2023
The Court of Appeal has remitted a ‘long, bitter and extortionately expensive’ divorce case for a financial remedy hearing with a litigation funder attached as a party, following a ‘procedural quagmire’
In Simon v Simon & Level [2023] EWCA Civ 1048 the wife, Lauren Simon, took out nearly £1m in litigation loans from Integro Funding, trading as Level, to finance her divorce case. However, she later attended a private financial dispute resolution hearing, to which Level were not party. There, she reached agreement with the husband, Paul Simon, that she could live for the rest of her life at a property owned by her husband’s trust in exchange for giving up the right to a lump sum of about £3m. Consequently, she was unable to repay the loan.
A consent order was sealed and approved by a High Court judge, but later set aside by consent. The judge made separate case management orders to move matters to a financial remedy trial at which Level would be an equal party in the proceedings.
The husband appealed, partly on the grounds the judge was wrong to permit Level to intervene in the financial remedy proceedings, and the judge was wrong to find that litigation lenders should be treated better than secured creditors.
Delivering the main judgment, handed down this month, Lady Justice King said it was not necessary for the court to rule on whether it was wrong to permit Level to intervene. King LJ also held that ‘commercial litigation lenders are not in the same position as other creditors’ since litigation funders perform a valuable function of promoting access to justice.
The court partly allowed the husband’s appeal, holding the judge was in error in ordering a new full financial remedy hearing and transferring the civil proceedings to the family court. Otherwise, they upheld the judge’s approach.
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