Access to Justice—Litigation Funding and Group Proceedings: Consultation Paper

Questions

Chapter 3: Current regulation of litigation funders and lawyers

1 What changes, if any, need to be made to the class actions regime in Victoria to ensure that litigants are not exposed to unfair risks or disproportionate cost burdens?

2 What changes, if any, need to be made to the regulation of proceedings in Victoria that are funded by litigation funders to ensure that litigants are not exposed to unfair risks or disproportionate cost burdens?

3 Should different procedures apply to the supervision and management of class actions financed by litigation funders compared to those that are not?

4 How can the Supreme Court be better supported in its role in supervising and managing class actions?

5 Is there a need for guidelines for lawyers on their responsibilities to multiple class members in class actions? If so, what form should they take?

Chapter 4: Disclosure to plaintiffs

6 In funded class actions, should lawyers be expressly required to inform class members, and keep them informed, about litigation funding charges in addition to the existing obligation to disclose legal costs and disbursements? If so, how should this requirement be conveyed and enforced?

7 In funded proceedings other than class actions, should lawyers be expressly required to inform the plaintiff, and keep them informed, about litigation funding charges in addition to the existing obligation to disclose legal costs and disbursements? If so, how should this requirement be conveyed and enforced?

8 How could the form and content of notices and other communications with class members about progress, costs and possible outcomes be made clearer and more accessible?

9 Is there a need for guidelines for lawyers on how and what they communicate with class members during a settlement distribution scheme? If so, what form should they take?

Chapter 5: Disclosure to the court

10 In funded class actions, should the plaintiff be required to disclose the funding agreement to the Court and/or other parties? If so, how should this requirement be conveyed and enforced?

11 In funded proceedings other than class actions, should the plaintiff disclose the funding agreement to the Court and/or other parties? If so, should this be at the Court’s discretion or required in all proceedings?

12 In the absence of Commonwealth regulation relating to capital adequacy, how could the Court ensure a litigation funder can meet its financial obligations under the funding agreement?

Chapter 6: Certification of class actions

13 Should the existing threshold criteria for commencing a class action be increased? If so, which one or more of the following reforms are appropriate?

(a) introduction of a pre-commencement hearing to certify that certain preliminary criteria are met

(b) legislative amendment of existing threshold requirements under section 33C of the Supreme Court Act 1986 (Vic)

(c) placing the onus on the plaintiff at the commencement of proceedings to prove that the threshold requirements under section 33C are met

(d) other reforms.

14 Should the onus be placed on the representative plaintiff to prove they can adequately represent class members? If so, how should this be implemented?

15 Should a specific legislative power be drafted to set out how the Court should proceed where competing class actions arise? If not, is some other reform necessary in the way competing class actions are addressed?

16 Does the involvement of litigation funders in class actions require certain matters (and if so, which) to be addressed at the commencement of, or during, proceedings?

Chapter 7: Settlement

17 How could the interests of unrepresented class members be better protected during settlement approval?

18 What improvements could be made to the way that legal costs are assessed in class actions?

19 Should the following matters be set out either in legislation or Court guidelines?

(a) criteria to guide the Court when assessing the reasonableness of a funding fee

(b) criteria for the use of caps, limits, sliding scales or other methods when assessing funding fees

(c) criteria or ‘safeguards’ for the use of common fund orders by the Court.

20 Is there a need for an independent expert to assist the Court in assessing funding fees? If so, how should the expert undertake this assessment?

21 At which stage of proceedings should the Court assess the funding fee? What, if any, conditions should apply to this?

22 In class actions, should lawyers and litigation funders be able to request that the total amounts they receive in settlement be kept confidential?

23 How could the management of settlement distribution schemes be improved to:

(a) ensure that individual compensation reflects the merits of individual claims

(b) ensure that it is completed in a manner that minimises costs and delays?

24 How could Court-approved notice for opt out and settlement be made clearer and more comprehensible for class members?

25 Are there other ways the process for settlement approval and distribution could be improved?

Chapter 8: Contingency fees

26 Would lifting the ban on contingency fees mitigate the issues presented by the practice of litigation funding?

27 If the ban on contingency fees were lifted, what measures should be put in place to ensure:

(a) a wide variety of cases are funded by contingency fee arrangements, not merely those that present the highest potential return

(b) clients face lower risks and cost burdens than they do now in proceedings funded by litigation funders

(c) clients’ interests are not subordinated to commercial interests

(d) other issues raised by the involvement of litigation funders in proceedings are mitigated?

28 Are there any other ways to improve access to justice through funding arrangements?