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Litigation funding and class actions

07 June 2019 - By Nick Butcher

What's happening in New Zealand?

Litigation funding and class actions are increasingly becoming strong access to justice routes. But are there specific laws regulating these services? Is litigation funding an abuse of power? Do the laws that allow litigation funding and class actions need reform? What does the Government think? And could the courts withstand more of this style of justice? Nick Butcher investigates these questions and many more.

Litigation funding – when a third party puts up the money to bring a case before court that usually involves multiple claimants – is turning into a powerful alternative for gaining access to justice in New Zealand.

Recent high profile cases which were litigation funded and drew much attention include the multi-million dollar collapsed Mainzeal construction company claim and the kiwifruit growers’ multi-million dollar negligence claim against the Crown.

Litigation funding in New Zealand is nowhere near the big business it is in other comparable jurisdictions. And perhaps that’s because it’s still a somewhat grey area in law. It’s permitted to fund class action litigation under rule 4.24 of the High Court Rules (HCR), but litigation funding isn’t itself governed by a specific piece of legislation.

Across the Tasman Sea, Australia’s litigation funding sector is much more established with roots in the late 1990s. One of the most experienced companies is LCM (Litigation Capital Management) which was founded in 1998. LCM typically takes on big cases, so the claim must be at least AU$5 million for a single case to gain their attention.

LCM says the landmark 2006 Fostif High Court case Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41, stating that litigation funding was not an abuse of process, has resulted in the industry growing to be utilised in the context of commercial claims, class actions and international arbitrations.

Class actions involving multiple claimants are often financed through litigation funding, but if a single person is unable to afford representation for a legal issue but does so through a third party, technically that too is considered litigation funding.

In May 2018, the Law Commission announced it would review both class actions and litigation funding. But the project wasn’t considered a priority, and was put on hold. The Law Commission says the current status is that they are in the early stages of reactivating the review.

The New Zealand Law Society strongly supports revival of the review and Justice Minister Andrew Little says he is keen for this work to resume.

“I know that litigation funding is becoming a more regular feature of our legal landscape. It’s important because for some people the only way that they can conduct litigation and get access to justice is through third party litigation funding,” he says.

The connection between litigation funding and class actions

University of Auckland Faculty of Law lecturer Nikki Chamberlain was a commercial litigator when she practised law.

Nikki Chamberlain
Nikki Chamberlain, University of Auckland
Faculty of Law lecturer

Her 2018 article, Class Actions in New Zealand: An Empirical Study 24(2) NZBLQ 132-165, is the first paper of its kind on class actions in New Zealand.

She defines a class action as: A legal procedure which enables a number of persons with similar claims (or parts of claims) against the same defendant to be determined in one suit. In a class action, one or more persons (the ‘representative plaintiff(s)’) may sue on his, her or their own behalf and on behalf of a number of other persons (‘the class’) where the class claims a remedy for the same or a similar alleged wrong as the representative plaintiff (‘common issues’). Usually, only the representative plaintiff is a party to the action. The class members are not generally identified as individual parties to the litigation but merely described. The class members are bound by the outcome of the litigation on the common issues, whether favourable or adverse to the class, although they do not for the most part, take any active part in that litigation.

Ms Chamberlain’s research found that there had been 36 class actions filed in the High Court up to 1 March 2018.

The breakdown

Before the 1980s there were just three class actions, then the 1980s brought in four. By the 1990s that figure had doubled to eight and by the first decade of the 2000s, it was 13. Between 2010 and 2018 there have been eight.

Just four of these 36 class actions were litigation funded, but Nikki Chamberlain expects that funding figure will grow for a number of reasons.

“First, from a practical perspective, litigation funding is now allowed due to the reduced use of the torts of champerty and maintenance. Secondly, there is a need for third party litigation funders in relation to certain types of claims, such as small damages claims, where it is not economically viable for the plaintiff class to fund litigation against often well-resourced defendants. Thirdly, although litigation funding clearly facilitates access to justice for the plaintiff class, it is also big business for the funder and their shareholders because the funder obtains a fee over and above reimbursement costs for funding the litigation,” she says.

The torts explained

Ms Chamberlain explains that maintenance occurs where a third party assists a party in a civil proceeding to bring or defend that proceeding without lawful justification and damage is thereby caused to the opposing party in the proceeding. Champerty is a form of maintenance where the third party who gives the assistance does so on the basis that he or she receives a share of the damages awarded. As Todd on Torts says: “the law of maintenance and champerty seeks to prevent wanton and officious interfering with the disputes of others in which the intervener has no interest and where the assistance is given without justification or excuse” (8th edition, page 1061).

Ms Chamberlain says there are a number of jurisdictions which have completely abolished the torts of champerty and maintenance, including England and certain states in Australia such as Victoria, South Australia and New South Wales.

“However, the torts still exist in New Zealand, albeit in a reduced form. In Saunders v Houghton [2010] 3 NZLR 331, the Court of Appeal accepted that litigation funding of a class action can occur where there is an arguable case for rights that warrant vindication, where there is no abuse of process, and where the funding arrangement is approved by the court. In relation to this last point, Justice Glazebrook stated in Waterhouse v Contractors Bonding Ltd [2014] 1 NZLR 91 that a plaintiff should initially disclose the identity and location of a funder and its amenability to the jurisdiction of the court. Nevertheless, without relevance to a further application and orders, the terms of the funding agreement did not need to be disclosed. However, in PriceWaterhouseCoopers v Walker [2017] NZSC 151, Chief Justice Elias issued a dissenting opinion concerned that the majority’s opinion would be seen as cementing the approach in Waterhouse without full argument. Her Honour reiterated that champerty and maintenance are still part of New Zealand law and she intimated that, without statutory regulation, there is risk of oppression and the courts therefore need to closely scrutinise terms of a funding arrangement to prevent civil claims being treated as negotiable investments. Interestingly, the LPF Group (a litigation funder), filed an official complaint against the Chief Justice with the Judicial Complaints Commissioner over what it claimed were ‘unfair and unjustified opinions’ which create ‘uncertainty over the validity of legal funding in New Zealand’. LPF subsequently dropped their complaint.”

Advantages and disadvantages of not having specific legislation

High Court Rule 4.24 has made it possible to allow class actions, which have been financed through litigation funding, and perhaps one of the advantages of not having a specific Act running the class action regime, Nikki Chamberlain says, is that HCR 4.24 allows judicial flexibility.

“It enables flexibility because it does not provide specific detailed class action civil procedure rules which judges must comply with in managing class action litigation. As a result, there may be members of the judiciary who favour the judicial flexibility of the current approach as it allows them to be flexible in deciding and tailoring appropriate procedure on a case by case basis. However, in response, the imposition of specific class action procedure based rules will not remove judicial discretion and flexibility in its entirety – it will merely provide clear boundaries and a framework within which judges can exercise their discretion and, in turn, this will provide more certainty for the benefit of all class action stakeholders, including parties,” she says.

Apparent pros but a number of cons

The problems, Ms Chamberlain says, primarily stem from the fact that the rule derives from the late 17th/early 18th century and was never intended to manage large scale class action litigation. As a result, the judiciary has to rely on its inherent jurisdiction to make procedural decisions through case management and by hearing interlocutory applications at the expense, both in respect of time and money, of the parties. These decisions often involve issues which could be answered by specific civil procedure rules as done in other jurisdiction such as the United States and Australia, she says.

She says, for example: specific class action civil procedure rules could be adopted on issues relating to class certification, whether a class action is opt-in or opt-out, requirements relating to the representative class plaintiff, notice requirements to potential class members, administration of class action trials, class action judicial settlement approval requirements, litigation funding disclosure requirements, damage allocation requirements, cy-près, and whether class actions can be contracted-out of by using arbitration agreements.

Ms Chamberlain says the adoption of legislation on these issues means there would be more certainty in how litigation is managed in addition to saving parties on costs and time. “There are likely to be fewer appeals for interlocutory decisions on procedural matters in the long run.”

Effect on potential defendants

While not naming them specifically, Nikki Chamberlain says there are certain corporate and/or governmental interests which might be against legislating formal procedural class action rules on the basis that it legitimises the class action mechanism and it will open the floodgates to litigation funders.

Referring to the evidence in her study [“Class Actions in New Zealand: An Empirical Study”], she says class actions financed by litigation funding are already occurring and, in fact, are increasing in New Zealand, so it makes sense to introduce proper regulations.

“The lack of procedural rules means that, for the most part, litigation funders operate unregulated in New Zealand. The lack of regulation for third party funders means that there could be conflicts of interest between the funders, class plaintiffs and class solicitors in relation to the control, management and settlement of the litigation. There are also issues as to whether all class plaintiffs will be required to pay the third party funders if some refuse to sign up to the litigation funding agreement which leads to whether New Zealand, like Australia, should adopt rules around common fund orders.”

She says there is also concern that some funders will back unmeritorious claims, although they investigate into prospects of success when deciding whether to underwrite litigation. She also says the courts have been reluctant to get involved in monitoring the terms of litigation funding agreements.

Rules allowing funding must be correct

Justice Minister Andrew Little says it’s vital that the rules allowing litigation funding are correct, which is why he is keen for the Law Commission to resume its work on class actions and litigation funding.

“We don’t want it becoming a commercial proposition for litigation funders. It needs to be pursuing justice for those to whom harm has been done. So we need a close examination of how it is operating in New Zealand within our legal system and we need to ask what additional rules or regulations might be needed to ensure fairness and protection of litigants,” he says.

Nikki Chamberlain says in Waterhouse v Contractors Bonding Ltd Justice Glazebrook commented that it is not the role of the courts to act as general regulators of funding agreements – nor is it the role of the courts to assess the merits or fairness of bargains between third party funders and plaintiffs.

Justice Glazebrook said the courts’ role is to merely adjudicate on any application brought before them in a proceeding (which may in certain situations involve issues around the funding agreement). Ms Chamberlain considers that litigation funding regulation is needed so that third party funders can provide access to justice where not otherwise available while also providing clear boundaries funders must operate within for the benefit of, and so they cannot take advantage of, potential vulnerable plaintiffs.

Could the courts manage more litigation funded class action cases?

Class actions can take several years to settle and litigation funders back cases to win, so there is also the obvious question of whether the court system could manage a greater number of litigation funded class actions if legislation led to even more claims being heard.

Nikki Chamberlain believes New Zealand courts are well-equipped.

“I have confidence in our judiciary. They deal with complex litigation every day and specific legislation will assist the court in providing certainty and streamlining processes in the management of complex class action litigation,” she says.

And while investors in litigation funding organisations do demand a return on their financial commitment, Ms Chamberlain says legislation could have the ability to regulate the parameters within which litigation funders operate in funding class action litigation.

“Legislation can regulate the boundaries of litigation funding agreements and litigation management strategy. Legislation can also clearly indicate who is responsible for ensuring funders adhere to the regulations and who is enforcing the regulations,” she says.

As Justice Minister Andrew Little says, traditionally there have not been many class actions in New Zealand, but it’s an area of justice that is growing.

“Since the ACC and personal injury came into place, there hasn’t been a lot of class action lawsuits. You do get it in the commercial arena with company collapses and multiple creditors being left out of pocket. They’ve suffered losses as a result of allegedly unlawful actions. We need to be sure that these cases are being filed in the right spirit with the right objectives. Of course litigation funders are looking for a return. They wouldn’t be providing what is effectively a loan without that. But we must make sure that litigation decisions are not driven purely on a commercial basis and that it is about achieving justice for people,” he says.

While he won’t speculate on whether a law change could be part of the future once the Law Commission reports back to him, Mr Little does think better regulations are needed around litigation and class actions for the sake of transparency.

“I suspect there will be a need for changes. That’s why I’m keen to see a thorough examination done by the Commission,” he says.

Australia and litigation funding status

In Australia LCM was one of the first companies to provide litigation financing services.

Susanna Taylor is a senior investment manager and former litigation lawyer based in their Sydney office.

“Litigation funding started off as an initiative to fund liquidators in bringing claims on behalf of insolvent companies. There wasn’t any focus on class actions initially,” she says.

Things progressed further once the 2006 Fostif case came into force, and class actions became regulated under Part IVA of the Federal Court of Australia Act 1976 and Division 9.3 of the Federal Court Rules 2011.

“This meant litigation funders felt more comfortable and confident in investing money in cases. Before then, there was always the risk of an agreement being judged unenforceable, or that somehow the involvement of a litigation funder in litigation was an abuse of process,” Ms Taylor says.

She says that when she made the move from private practice to litigation funding in 2014, there was still just a handful of Australian funders, but since about 2015 UK funders have become involved in litigation funding in Australia.

Nowadays, there are about 30 funders operating there, so the market is competitive.

And in January this year the Australian Law Commission’s completed inquiry into class actions and litigation funders was tabled in Parliament. The inquiry made a series of recommendations including:

  • Provide mechanisms in statute and legal frameworks for the Federal Court to deal effectively with competing class actions;
  • Provide mechanisms by which the Federal Court can appoint an independent costs referee to establish the reasonableness of legal costs in class action matters, and by which the Court can tender for settlement administration services;
  • Increase transparency and open justice for class action settlements;
  • Decrease the risk of litigation funders failing to meet their obligations or exercising improper influence through a statutory presumption in favour of securities for cost, and greater Court oversight of funding agreements which must indemnify the lead plaintiff against an adverse costs order;
  • Introduce a voluntary accreditation scheme for solicitors acting in class action proceedings.

LCM says it has regularly been approached to fund cases in New Zealand and is funding at least one case at present. Susanna Taylor says the London Stock Exchange-listed company only funds about 5% of the cases it gets applications for.

In March this year LCM announced that it would commit AU$100 million of capital into Australasian litigation finance projects during 2019, and that includes New Zealand.

All decisions to fund a case are commercial decisions based on a rigorous due-diligence process and LCM finances both single cases and portfolios across class actions, claims arising out of insolvency, international arbitration and straight commercial claims – which are generally disputes between two companies.

Back to the Mainzeal case

One of the most recent instances of a litigation funder backing a high profile claim is the Mainzeal construction company case. The company collapsed in 2013 leaving unsecured creditors $110 million dollars out of pocket.

Towards the end of February this year, in Mainzeal Property and Construction Ltd (in liquidation) v Yan [2019] NZHC 255, the High Court upheld claims of reckless trading, in breach of s 135 of the Companies Act 1993, made against the former directors of Mainzeal Property and Construction Ltd.

It ordered the directors of the failed construction company to pay $36 million to creditors. This included $6 million to be paid by former Prime Minister Dame Jenny Shipley, and two other directors, Clive Tilby and Peter Gomm. The court ordered Richard Yan, a significant personal shareholder of the Richina Pacific Group, to pay the remaining $18 million, in addition to being jointly and severally liable for the judgment sums entered against the other directors.

Richina Pacific is an organisation that was part of the broader Mainzeal group, which had obtained the benefit of significant advances from Mainzeal over a number of years.

The directors appealed this decision and that has resulted in Mainzeal cross appealing with the LPF Group’s support and asking the court to double the amount the directors of the failed construction company should pay, to $73 million.

A Court of Appeal date has not yet been set.

New Zealand’s largest litigation funder

The LPF Group Ltd is the largest New Zealand-based litigation funder and is financing the fight against Mainzeal’s insurers. There are at least six other litigation funding companies in the country.

Jonathan Woodhams
Jonathan Woodhams, Executive Director
of the LPF Group

The LPF Group has investors and while they’re obviously looking for a return on their capital, Executive Director Jonathan Woodhams points out that they are in this business to fund meritorious cases only.

Mr Woodhams says cases are chosen carefully and ethically, and Mainzeal fits this criteria and their objectives.

“It’s not about just achieving financial success. We are part of the New Zealand community. Our board and our investors expect us to take on what they consider good cases. It cannot be about just making money,” he says.

Mr Woodhams has a background in both the corporate and legal sectors, and has practised commercial, banking and insolvency law.

As he explains, litigation funding provides access to justice for people in complex situations. But he notes that there are no specific regulations or laws it falls under.

“New Zealand is significantly behind other Commonwealth jurisdictions such as Australia and the United Kingdom in helping plaintiffs get to court with third party funding. The law here is not as developed which is why there are not many players in the area of litigation funding,” he says.

Third party litigation funding has generally been developed in conjunction with the courts and their views. He says the leading reference case is Waterhouse vs Godfrey [2013] NZSC 89.

That case related to proceedings against Contractors Bonding Ltd over a failed insurance business in Georgia, USA. The proceedings were funded by a third party unrelated litigation funder.

“It recognises the two tensions between plaintiffs with meritorious cases and being able to access funding, and defendants having the right to know who is bringing the action against them. The courts in New Zealand have developed a frame work for disclosure as to what it will or won’t get involved in,” he says.

Offshore funders largely absent

Because of an absence of specific laws for litigation funding, offshore funders, he says, have largely been absent in New Zealand.

Mr Woodhams says he wouldn’t want to see litigation funding imitating the style of the United States where people sometimes bring action and hope for large settlements of generally unmeritorious claims.

He says the LPF Group takes a cautious approach and has funded 20 cases since 2010, of which 15 have been completed with five cases ongoing.

“We run a very careful ruler over the cases we see and we would probably see between 10 and 20 cases for each single case we start due diligence on. We don’t take on unmeritorious cases or those that we think the plaintiff won’t get anything out of. We would support any regulation that would allow more plaintiffs access to funding and to provide them with meaningful access to the court system,” he says.

How LPF makes funding decisions

It’s a complex process.

An investment committee looks at all proposals. If it meets their criteria, they’ll meet with the plaintiffs and legal team to assess the merits of the claim, the quality of the action proposed and often they’ll seek independent counsel to review their decision and provide a recommendation as to whether they should proceed.

Mr Woodhams says turning down cases is never an easy decision to make, but it does happen.

“I’ve heard many stories from plaintiffs about cases we’d like to fund but it simply isn’t an economic proposition to do so. The last thing we want as a business is where the lawyers and the funder make money and the plaintiffs get nothing. It’s just not what we as a company and our investors believe in,” he says.

A Mainzeal banner on a street
Photo: Schwede66 

About 60% of all proceeds delivered after legal fees from cases funded by LPF have gone back to plaintiffs.

“A good example would be the Mainzeal case where there was no prospect of the claim being run without the support of litigation funding. They couldn’t have afforded it,” he says.

Some media reports estimated the cost of litigation funding to be about $2 million. But Mr Woodhams says it was much higher and if that had been the price, the liquidators probably could’ve afforded to fund the claim themselves.

While the LPF Group receives a percentage of the outcome of each successful case, its funding is provided on a ‘no win, no fee’ premise.

LPF funded the kiwifruit growers’ successful multi-million dollar claim against the Crown that negligence on behalf of the then Ministry of Agriculture and Forestry caused the associated losses from the outbreak of PSA in 2010.

In 2018, the High Court found that MAF owed and breached a duty of care to kiwifruit orchardists in negligently allowing destructive PSA bacteria into New Zealand, thereby causing significant damage to North Island kiwifruit orchards (Strathboss Kiwifruit Ltd v Attorney-General [2018] NZHC 1559).

“The Crown have said publically that they spent over $6 million in their defence [on that case]. We didn’t spend that much but certainly it was more than a million dollars. That was 13 weeks in court with about 60 witnesses called,” Mr Woodhams says.

Some of those witnesses were from overseas. including from Australia and Italy, along with university professors.

“This isn’t cheap to do and without third party funding, this claim could not have gone before the court,” Mr Woodhams says.

Being prepared to lose

Winning in court is not, and has never been, guaranteed, and litigation funders have to be prepared for a loss, even if they’re confident the decision will go their way. The outcome of the Mainzeal claim was never considered a certainty and is under appeal.

“We’re always prepared to lose. Our investors are told that there is no certainty in litigation. It’s not something you want but we fund on a no recourse basis. We recognise that if we lose a case, we will have to pay the other side’s costs as well,” he says.

Mr Woodhams says this should also apply to the insurers of defendants.

“Mainzeal directors may not have been running their own defence. Under the terms of their contract, the insurers were entitled to take control and run it.”

Who pays?

“We think that if a plaintiff gets it wrong, they should have to pay costs to the defendants and equally if the plaintiff’s funder gets it wrong, they’re responsible for those costs. That should actually apply for insurers of parties and defendants equally,” Mr Woodhams says.

Using a hypothetical example, he says if an insurer had a policy limit of, for example $10 million, and the claim ends up being $12 million and then costs on top are $2 million, the plaintiffs would probably be out of luck when trying to recover the extra $4 million.

Mr Woodhams believes there is an inequality of treatment when it comes to an insurer versus the plaintiff’s funder, as the insurer is less exposed.

“Courts are quite happy to say that a plaintiff needs to pay security for costs for bringing the claim but defendants don’t have to pay security for costs for running meritless defences.”

Mainzeal creditor recovery prospects

As mentioned, the case is under appeal and being prepared for such a development after the decision by the High Court was a contingency that was planned for by the legal team.

Let’s also remember that Mainzeal collapsed six years ago, owing creditors three times the amount the court ordered to be paid out to creditors by Mainzeal directors.

So the case goes on with no immediate end in sight.

Therefore, when it comes to their clients receiving a slice of the $36 million the court ordered to be paid to creditors by the former directors of the collapsed company, the timeframe is out of the control of the LPF Group. And, if a Court of Appeal hearing is successful for Mainzeal, that figure could end up being twice as much, or perhaps there may be a settlement reached.

And as mentioned earlier, under cross-appeal that claim has risen to $73 million.

“All we can do is select the best possible legal team. We would say that the best outcome for plaintiffs is something that happens quickly but that isn’t always the case,” Jonathan Woodhams says.

Who represents LPF in court?

Mr Woodhams says the average duration of cases the LPF group funds is somewhere between two and three years.

Zane Kennedy
Zane Kennedy, partner at MinterEllisonRuddWatts

Zane Kennedy is a partner at MinterEllisonRuddWatts. He specialises in dispute resolution and litigation. He’s an experienced advocate and trial lawyer.

“The Mainzeal case was the first time that I’d acted on a large scale litigation where the client was funded by a litigation funder,” he says.

But while the litigation funder might be paying the bills, it isn’t a rear view mirror hanging over the shoulder of the legal team.

Mr Kennedy says the litigation funder doesn’t interfere with how the legal team runs the case although it is closely involved in the process from the outset.

“Litigation funders are not entitled to call the shots even though they’re paying the bills. The plaintiff is the party bringing the litigation and remains in charge of it. The plaintiff is still giving the instructions and making the call on steps that need to be taken.

But it’s not completely free rein of the courtroom as the litigation funder still needs to be consulted about steps that are being taken, he says.

And the directors of the LPF Group come from a range of backgrounds including commercial law and finance, so their experience and opinions are also valuable.

As has been reported, litigation funding companies owe financial returns to their investors. Might that suggest that commercial considerations are a priority when approaching a case?

“The directors of the LPF Group are very experienced in consulting on large scale litigation and are focused on the commercial aspects of running cases and negotiating settlements. That does bring a slightly different perspective to the issues that arise. As lawyers, we like to think that our advice is driven by both commercial and legal considerations but lawyers, first and foremost, are focused on the legal issues. If you don’t have a strong legal case, it’s not going to get very far commercially,” Mr Kennedy says.

The Mainzeal case initially ran for over two months and there’s likely to be more court time to come.

“It was a big case involving thousands of documents. There was a huge amount of preparation involved for counsel. It was the longest running directors’ duty case in New Zealand and there were a number of separate legal teams that were involved in the hearing for the parties. The insurers had their own separate legal team that didn’t actually appear but from time to time were present at the back of the courtroom,” he says.

Companies that could fund their own litigation costs

Jonathan Woodhams says increasingly the LPF Group is receiving applications from companies that could afford their own litigation costs.

“We’ve had a number of applications from reasonably-sized commercial organisations that recognise that litigation is simply another asset on their balance sheet and that having it funded allows them to employ capital efficiently across their business. Cost of a case is a big consideration and strategically they might be better to fund a case with someone else’s money. They also recognise that they might get a better outcome too. They don’t want to tie their money up in litigation,” he says.

This style of litigation has already established a footprint in some overseas jurisdictions.

“Certainly overseas, we’re seeing large portfolios of litigation emanating from sizable organisations such as BT [British Telecom]. They would be one of the largest I’m aware of,” he says.

Exterior of a building damaged in the Christchurch earthquake
Sydenham, Christchurch 2011. Photo: Knjulian

That was in 2016, when British Telecom financed a US$45 million portfolio of its cases. BT had the ability to fund these cases itself but instead chose to put the money into a litigation funder for similar reasons to those explained by Mr Woodhams.

Australian company LCM specialises in this style of risk transfer.

Susanna Taylor, the Sydney-based senior investment manager, says their company is involved in this work which is called ‘corporate portfolio financing’.

LCM funded its first corporate portfolio transaction in October 2018, making it one of few funders globally to have done so since 2016, and its team possesses some of the most experienced practitioners in the industry at originating and executing such transactions.

“What we do is offer a large corporate company that has a number of disputes a portfolio financing facility. We fund some or all of their litigation, so in some of those cases they’ll be the claimant and in others they’ll be the defendant.

“In corporate portfolio transactions, the risk is spread across multiple cases so we are able to provide a more attractive pricing structure to our clients than they might receive by having cases funded on an individual basis. For the company, it keeps litigation costs off their balance sheet, shifts the financial risk to a third-party and releases the financial upside in claims where returns are generated at zero cost,” she says.

$300 million Canterbury class action

Maurice Blackburn, Australia’s leading class action law firm, has recently announced that it will fund a major claim concerning home owners affected by the Canterbury earthquakes.

Christchurch firm GCA Lawyers will represent the big claim against Southern Response – the Government-owned company responsible for settling claims by AMI policyholders for Canterbury earthquake damage.

GCA Principal Grant Cameron, who is the lawyer for the class, has confirmed that a contract had been signed.

“Claims Funding Australia is a major litigation funder and so we can now see this through to completion, no matter how long it might take,” he says.

Mr Cameron says they’re thrilled about this relationship.

“This means that all those Southern Response policyholders who settled before 1 October 2014 can now seek proper redress if they now come forward. On the information to hand it seems there may be about 3,000 affected policyholders and there could be about $300 million in issue”.

Last updated on the 7th June 2019