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Australia – Senator Brandis Advocates For Funding Reform.
20 January 2014

Legal News & Analysis – Asia Pacific – Australia – Dispute Resolution

 

Recent media statements attributed to the Commonwealth Attorney-General, Senator George Brandis, suggest that the Australian litigation funding industry is under “active review right now”.1 Reportedly, Senator Brandis considers that regulation of funders is necessary:

 

 

  1. in order to protect companies and unsophisticated consumers from opportunistic claims, and
  2. to inhibit moral hazards and conflicts of interest.

At the date of this publication the Coalition has not announced any reform, however, given the Attorney-General’s comments it seems likely that some form of regulation will be considered by the Federal Government.

 

What will funding reform address?

 

Any litigation funding reform may involve a review of:

 

 

  • prudential conditions that may need to be placed on funders in an effort to restrict speculative funding by third parties that do not have the capacity to meet adverse costs orders – certain active funders in the Australian market are offshore shelf entities with limited assets in the jurisdiction, and
  • current restrictions placed on legal practitioners from funding litigation – unlike third party litigation funders, legal practitioners have duties to the Court which may prevent such conduct.

 

It is possible that any proposed reforms may be included in the Productivity Commission’s wider review on access to justice (discussed above).

 

 

 

For further information, please contact:

 

Damian Grave, Partner, Herbert Smith Freehills
[email protected]

 

Jason Betts, Partner, Herbert Smith Freehills
[email protected]


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