Topalsson GmbH v Rolls Royce Motor Cars Limited

Disclosure of litigation-funding information may be ordered in support of a prospective non-party costs application. The applicant need not show that the application is likely to succeed. It is sufficient that the proposed application is not inherently weak or fanciful, subject to the court’s assessment of value, privilege, proportionality and justice. Where potential funders are not yet identified, the court should consider whether there is a rational basis for believing that relevant funders may exist. Foreign confidentiality or criminal-law consequences require evidence of a real risk, but do not automatically prevent disclosure. The court must balance that risk against the importance of the information to the fair disposal of the English proceedings and may use confidentiality protections.

Rolls Royce Motor Cars Limited sought information from Topalsson GmbH about the identity, terms and involvement of persons who had funded the litigation. The information was sought in support of a prospective application under section 51 of the Senior Courts Act 1981 for costs orders against Mr Kubilay Topal and potentially other funders.

Topalsson argued that the application was premature, that the prospective costs application was unlikely to succeed, and that disclosure could expose it or its funders to serious consequences in Germany. The central issues were whether disclosure was necessary before the prospective application, how the court should assess its apparent strength, and how foreign-law and confidentiality concerns affected the discretion.

1. Application granted. Topalsson was ordered to provide funding information and relevant documents concerning the Termination Trial, subject to a confidentiality ring. RRMC’s application costs were payable by Topalsson. Costs of complying with the order were reserved.
2. The court rejected the submission that RRMC had to show that the prospective non-party costs application was likely to succeed. The proper threshold was whether the application was not inherently weak or fanciful. Where the purpose of disclosure was to identify possible funders, it was premature to assess whether a section 51 order would ultimately have a real prospect of success.
3. The court considered the likely value of the documents, whether they would elucidate matters probative of the section 51 discretion, privilege, proportionality and the overall justice of the order. The information was likely to provide a transparent basis for deciding the future costs application and could avoid wasted costs against parties who were not proper targets.
4. The evidence established a sufficient basis for considering Mr Topal and other funders as possible real parties to the litigation. Funding, control and personal benefit were relevant indicia, but they were not a checklist and did not determine the eventual section 51 application.
5. Foreign-law objections did not justify refusing disclosure. Applying the guidance in Bank Mellat v HM Treasury, the court balanced the actual risk of foreign prosecution or civil liability against the importance of disclosure to the fair disposal of the English proceedings. The alleged German risks were theoretical and could in any event be managed through confidentiality restrictions.
6. Confidentiality obligations did not provide an absolute answer. The court was required to protect privacy and confidentiality so far as possible without compromising the administration of justice. The order covered funding from 22 April 2020 to 31 October 2023, and the requested information concerning funder identity, terms, involvement and interest was sufficiently clear.