CL-2017-000323 - [2025] EWHC 2876 (Comm)

INTRODUCTION

This judgment deals with the question of whether Mr Nicholas Thomas should be permitted to participate in the phases leading up to, and at, a hearing listed in February 2026 (the “Enforceability Hearing”), alternatively whether he should be permitted to do so only on conditions, including as to the discharge of extant costs orders and the provision of security for costs.

The Enforceability Hearing has been listed following an application issued by Harbour Fund II LP (“Harbour”) on 31 October 2024 (“the Harbour Enforceability Application”), along with a cross-application by Mr Thomas. The issue raised by those applications is whether entitlements established by Harbour at a trial before Foxton J in 2021 (the “Directed Trial”), in proceedings to which Mr Thomas was also party and in which he fully participated, and in respect of which he has brought no appeal, can be re-opened on the basis of the subsequent decision of the Supreme Court in PACCAR [2023] 1 WLR 2594. Mr Thomas wishes to contend, on the basis of that decision that the litigation funding agreement on which Harbour’s entitlements are founded is unenforceable.

These issues arise in the context of legal proceedings which have been going on, in one form of another, since 2005, including proceedings in this court since 2016. They were described by Foxton J in 2021 as “a dispute of labyrinthine complexity, in which matters are rarely what they appear to be” (SFO v LCL [2021] EWHC 1272 (Comm)). In setting out the background below, I shall simplify it so far as possible by concentrating on the points of most relevance to the present application.

Harbour submits that there are many difficulties with Mr Thomas’s proposed attempt to reopen the outcome of the Directed Trial. It says the orders that were made are final, have not been appealed, and are unaffected by subsequent authority; that it is too late to raise points which could have been, but were not, taken at trial (which was fiercely contested, with Mr Thomas legally represented throughout, and expressly adopting Harbour’s submissions, because he stood to benefit from them); that any such approach is abusive and in the face of established authority concerning the finality of litigation; and that a range of other procedural and substantive difficulties exist. However, Harbour says it has been driven, by Mr Thomas’ manoeuvrings as well as related challenges in Jersey proceedings by a party connected to Mr Thomas (Dr Gail Cochrane), to issue an application of its own to bring finality to this issue, with Mr Thomas seeking relief by way of a cross-application.

Most of those potential issues do not, however, arise for determination now. Harbour’s present applications are focussed on the consequences of an order which Foxton J made in early 2023, seeking to prevent further attacks on the Directed Trial outcome in early 2023 (the “Debarring Directions Order” or “DDO”). In particular, this constrained future participation by Mr Thomas in proceedings unless certain conditions were met, including by requiring him to give evidence as to the involvement of Dr Gerald Smith (whose role I explain below) in any further claim or application which Mr Thomas might seek to bring. In brief, Harbour contends that (a) Mr Thomas has not complied with the conditions set out in the DDO; (b) that he accordingly may not participate in the Enforceability Hearing either as a respondent or pursuant to his cross-application; and (c) that, in any event, in the circumstances viewed as a whole, Mr Thomas should be subject to debarring or other restrictions.

For the reasons set out below, I have concluded that Mr Thomas should not be debarred from participating in the Enforceability Hearing, but should be required to provide security for the costs of his cross-application.