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LCA should oversee accreditation for solicitors in class action law, says ALRC
Specialist accreditation – developed and overseen by the Law Council of Australia – for solicitors in class action law and practice for the identification and management of actual or perceived conflicts of interest in class actions is one of two dozen recommendations by the Australian Law Reform Commission from its inquiry into class actions and litigation funding.
Jerome Doraisamy
Source: Australian Law Reform Commission Google Maps
In late December 2017, then-Attorney-General George Brandis QC asked ALRC to consider whether and to what extent class action proceedings and third-party litigation funders should be subject to Commonwealth regulation.
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The inquiry was set “against the background of the increased prevalence of class action proceedings in courts throughout Australia, and the important role that litigation funders of class actions and other legal proceedings play in securing access to justice”, the report said.
In contemplating the integrity of third-party funded class actions and the efficacy of the class action system, the ALRC Report’s recommendations aimed to “promote fairness and efficiency, protect litigants and assure the integrity of the civil justice system”.
Among the recommendations set down was that the Law Council oversee the development of specialist accreditation for solicitors in class actions, requiring ongoing education to identify and manage conflicts of interests and duties.
The chapter pertaining to fees and conflicts also argued for the ability of solicitors to enter into “percentage-based fee agreements”, a statutory presumption that solicitors who fund representative proceedings on the basis of said percentage-based fee agreements provide security for costs. Moreover, it also argued for the Australian Solicitors’ Conduct Rules be amended to prohibit solicitors and firms from having financial or other interests in a third-party litigation funder that funds the same matter.
Elsewhere, the report recommended that litigation funders be better regulated, including a statutory presumption that funders who fund proceedings will provide security for costs, that they be required to report annually to the regulator on compliance matters, and that courts be empowered to award costs against funders and insurers who fail to comply with the overarching purposes of relevant legislation.
The report also recommended legislative amendments to allow for court-appointed referees to assess the reasonableness of costs where necessary and to provide further case management procedures for competing class actions.
Acting Attorney-General Greg Hunt thanked the ALRC for its work on the report.
“Now the ALRC’s recommendations are publicly available the government will further engage with key stakeholders in developing its response to the report, to ensure that the class actions regime provides just and effective outcomes for all Australians,” he said.
“The report raises complex issues which will need thorough consideration and the government will carefully consider each of the report’s recommendations.”
