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The cost of law: How litigation funding works with lawyers in Australia

Published:
08 May 2017
News
The cost of law: How litigation funding works with lawyers in Australia

In no uncertain terms heading to court is costly. The high price of seeking justice not only impedes access to justice for individuals, it prevents precedents being set by courts and risks undermining public faith in the legal system.

The College spoke to Wayne Attrill, a Senior Investment manager with IMF Bentham, a global litigation funding firm, on how litigation funding works alongside lawyers to help meritorious claims, its somewhat controversial history, and its increasing role in resolving disputes.

“Litigation funding enables access to justice for claimants whose claims may be too small to pursue on an individual basis and for claimants who may have strong, high value claims but insufficient financial resources to pursue those claims,” explained Attrill.

Historically speaking, funding litigation in which one had no interest was a crime and tort under the ancient common law of maintenance. Receiving a share of gains from legal action one funded, but lacks an interest in, was also a crime and tort under the law of champerty.

However, these laws were regarded as “obsolete” by the Australian High Court in 2006, and as crimes they have been abolished by statute in New South Wales, Victoria, South Australia and the Australian Capital Territory.

According to Attrill, litigation funding has played (and continues to play) an important role in Australia’s civil justice system. Since its establishment in 2001, IMF Bentham has obtained AUD $2 billion in total recoveries, with AUD $1.258 billion in returns for clients. With a 90% success rate on cases funded, the majority of its cases are settled.

“Funders such as IMF Bentham provide funding for the significant costs which are incurred in bringing such claims, and for the adverse costs risk. This financial support has meant that significant compensation has been recovered for victims of corporate misconduct,” said Attrill.

In addition, litigation funding assists with the recovery of assets for the benefit of creditors of insolvent companies and individuals, as well as funding arbitration claims.

Attrill, who has over 10 years’ experience with IMF Bentham following a career as a litigator and litigation management specialist, manages a portfolio of funded cases for IMF Bentham.  He is also a member of IMF Bentham’s Investment Committee which selects the cases for funding.

“IMF Bentham is not a law firm and does not provide legal advice,” explained Attrill. Rather, it works alongside class action, commercial litigation and insolvency lawyers to fund, investigate and manage litigation claims.

“IMF typically agrees to meet the litigant’s legal costs and disbursements, provide any security for costs and pay any adverse costs orders should the litigation fail. The lawyers retained by the litigant provide legal services to the litigant which (subject to the terms of the funding agreement) are paid for by IMF Bentham. Our objective is to maximise the value of funded claims,” said Attrill.

In future, Attrill predicts that litigation funding will be likely subject to “more active Court supervision.”

“As the costs and risks of bringing litigation claims are unlikely to diminish, litigation funding will continue to serve an important role in enabling access to justice. Further, solvent corporate plaintiffs will be motivated to explore litigation funding more frequently as a way to efficiently pursue claims and manage the risks associated with litigation.”

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We talk to the College of Law’s Adrian Deans, Academic Policy & Quality, James Crittenden, Head of Short Courses and CPD, and Lewis Patrick, Chief Academic Officer, about some of the pragmatic impacts of the Queen’s passing on the law and Australian legal profession.

3 Key Insights from the State of Separation Impact Report: Making Separation Simpler

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3 Key Insights from the State of Separation Impact Report: Making Separation Simpler

Parting ways in a relationship is never easy, and family lawyers are generally the first professional separating couples encounter when they end a relationship. For all of these reasons Angela Harbinson created The Separation Guide, which aims to make separation and divorce simpler, more manageable and less stressful.

Kyiesha Faulkner: How the Indigenous Business Handbook is transforming lives

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Kyiesha Faulkner: How the Indigenous Business Handbook is transforming lives

Starting a business is never easy. What step should you take first? How do you negotiate the ins and outs of your legal requirements if you’re not a lawyer? Even for a seasoned lawyer these steps are complicated…And what if you also face unique cultural considerations and complexities?

Australia's Legal CPD Requirements by State

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Australia's Legal CPD Requirements by State

This is your guide to Continuing Professional Development (CPD) requirements for lawyers across each Australian state. The CPD year runs from 1 April to 31 March, except for Tasmania, where it runs from 1 May to 30 April.

How to get into Wills & Estates with Rick Christie

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How to get into Wills & Estates with Rick Christie

Rick Christie, owner of ChristieLaw and committee member of STEP NSW, had always been attracted to the personal side of wills and estates. Insights spoke to Rick about how he came to specialise in wills and estates, what advice he might have for lawyers looking to move into the area, and what role industry organisation STEP can play for lawyers keen to become specialists.

Your Guide to a Career in Property Law

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Your Guide to a Career in Property Law

Download your guide to a career in property law for everything you need to know about property law in a nutshell, the personal strengths of a property lawyer, the core expertise of a property lawyer, related areas of expertise, and the career prospects in property law.

How to Become a Partner Guide

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How to Become a Partner Guide

This guide will help you navigate the first steps towards becoming a partner. It will help you reflect on your own motivations, assess your skill set, and determine the best path forward in your career.

New Resolution Institute and The College of Law partnership to maximise skills and experience

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New Resolution Institute and The College of Law partnership to maximise skills and experience

Resolution Institute and The College of Law are pleased to announce an exciting new partnership aimed at establishing a symbiotic cooperation which will maximise the resources of both organisations through mutual collaboration and the sharing of expertise and efforts in education and training.

Major changes ahead with the Family Law Amendment Bill 2023 in progress

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Major changes ahead with the Family Law Amendment Bill 2023 in progress

Major changes are coming that will impact the family law system and the way practitioners operate in Australia. The Family Law Amendment Bill 2023 is currently under debate in parliament and after its third reading, it is now under review with the Senate Legal and Constitutional Affairs Legislation Committee. The College of Law will provide legal training support when the Family Law Amendment Bill commences, but in the meantime, we spoke with College of Law adjunct lecturer Kathryn Kearley to find out about the most important changes.  

Graduates, prize winners honoured at the Winter 2022 Academic Awards Ceremony

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Graduates, prize winners honoured at the Winter 2022 Academic Awards Ceremony

The College of Law recognised over 200 graduates of its Postgraduate Specialisation Programs at the 2022 Academic Awards Ceremony on 1 August. These awards included the Master of Laws (Applied Law), Master of Applied Law (Family Law), Graduate Diplomas of Applied Law and Graduate Diploma of Family Dispute Resolution Practice (FDRP).

Legal Practice Management Course Queensland - Course Guide

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Legal Practice Management Course Queensland - Course Guide

Download the QLD Legal Practice Management Course Guide to learn how our program can prepare you to manage a law firm or take on a leadership role within an established practice.

Legal Practice Management Course Western Australia - Course Guide

Resources

Legal Practice Management Course Western Australia - Course Guide

Download the WA Legal Practice Management Course Guide to learn how our course can help you meet the requirements for a Principal Practising Certificate and successfully manage a legal practice.

Navigating Age Discrimination In The Law With Tile Imo

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Navigating Age Discrimination In The Law With Tile Imo

Bias and age-based discrimination remains an issue in the workforce, despite legal protections. In this article, we delve into the intricacies of age bias claims with Tilé Imo, Associate Director of Caxton Legal Centre. We explore the evolving legal landscape, effective strategies for litigating age discrimination cases, and the emerging trends that lawyers need to be aware of to best serve their clients.

Self-awareness: The surprising foundation to a thriving legal career

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Self-awareness: The surprising foundation to a thriving legal career

There’s no doubt the legal sector can be an intense work environment. Thanks to heavy caseloads and fierce competition, lawyers and other legal professionals are facing stress, anxiety and burnout on a concerning scale. But according to executive transition coach and CEO at Lucent Global, Ellie Scarf, it doesn’t have to be this way. There’s one tool that can help you manage a plethora of professional challenges. That tool? Self-awareness.

5 tips on how to avoid common ethical breaches for lawyers with Athol Opas

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5 tips on how to avoid common ethical breaches for lawyers with Athol Opas

The law is a complex field heavily reliant on knowledge, interpretation and advice. This makes for a profession that can have far reaching consequences and, as a result, lawyers are held to high standards. Athol Opas presents annual ethics updates to firms to keep them abreast of recent cases of misconduct and/or common ethical breaches. We spoke to Athol to find out about the most common ethical breaches lawyers should be mindful of and to gain his top tips on complying within ethical obligations. 

What are the top negligence claims facing lawyers today?

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What are the top negligence claims facing lawyers today?

The College of Law investigates which legal practice areas are most at risk of negligence claims and why. We spoke to Lawcover’s Legal Risk Manager Glenda Carry about the practice areas most affected by negligence claims, what behaviours can lead to adverse claims by clients, and what risk mitigation strategies law practices can put in place.

From LLB to Parliament – Australia’s Politicians-Turned-Lawyers

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From LLB to Parliament – Australia’s Politicians-Turned-Lawyers

Australia’s recent change in leadership has set the nation’s eyes on Malcolm Turnbull. Over the coming weeks and months, the newly appointed 29th Prime Minister will reveal his mettle as a national leader.

From ballroom dancing to the law: Meet PLT alum Helena Angela Hanna

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From ballroom dancing to the law: Meet PLT alum Helena Angela Hanna

While completing her law degree and Practical Legal Training with the College of Law, Helena Hanna also kept up with her interests outside of studies. Learn more about Helena and her law degree experience.

How to merge your love of music with your legal career: Chelsea's story

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How to merge your love of music with your legal career: Chelsea's story

Learn how Chelsea Donoghue merged her lot of arts and law: How she managed her study while on world tours, what she loves most about her work at Sanicki Lawyers, and what’s next.

Graduates and prize winners recognised in June ceremony

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Graduates and prize winners recognised in June ceremony

Graduates and prize winners celebrated their achievements, received their awards and honours remotely due to continuing COVID-19 restrictions.

How AI is being used in Family Law

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How AI is being used in Family Law

To understand where legal AI use cases are showing up within family law, the College spoke with two highly experienced practitioners who have incorporated AI into their legal practice in different ways. Fiona Kirkman, principal at Kirkman Family Law, embraced ChatGPT early on in her practice, while Jenna Downy, solicitor at Family Law Matters, helped train LawY, an AI legal research assistant.

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