Class Action and Litigation Funding Reform:

Lessons from Down Under?

As countries in the European Union grapple with the implementation of the Representative Actions Directive the class action regime in Australia is approaching its 30th anniversary. This article examines a number of Australian developments that may be of relevance in the development of representative action procedures in European jurisdictions. Findings from empirical research are outlined along with a number of policy developments and reform initiatives.

1. Introduction

Policy developments in relation to class actions in Europe in a number of respects parallel those in Australia but there are some significant divergences.

Common issues include the question of the regulation of litigation funding and mechanisms for ensuring that the majority of the proceeds go to class members. In a number of European jurisdictions there appears to be an increasing acceptance of the opt out mode...

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Lessons from Down Under?

1. Introduction

2. The Australian class action regime(s)

3. Standards governing the conduct of participants in class action litigation

4. The regulation of commercial litigation funders

5. Other recent or proposed class action reforms

6. Methods for the control of legal costs and funding commissions

6.1. High legal costs

6.2. High litigation funding commissions and other transaction costs

6.3. The current proposed reforms

7. The need for a not-for-profit funding mechanism

8. Methods for depriving those engaged in unlawful conduct of their unjust enrichment  

9. Concluding comments