class action and litigation funding - a possible solution for eq homeowners
TRANSCRIPT
Class Actions and Litigation Funding?
Kalev Crossland Partner
2High Court Litigation
$300 - $500K for 2 or 3 week trials
Insurer - effectively limitless war chest
2 years wait
3High Court litigation
1/3 – 2/3 costs back $150k – $250k dead money
even if win Life frozen
4High Court litigation
Inequality: pre-trial; power lawyeringmediation
Insurers repeat and well-versed in court cases
5Group Actions
Group Actions – 2 types Class Actions vs Representative Actions
Class action commonality derived from nature of the parties Representative actions commonality derived from nature of the issues NZ – only representative actions but courts flexible
6Representative Actions: requirements
Group capable of clear definition : e.g people insured with IAG for home and contents
Common issue: eg underscoped repairs with insurer using MBIE guidelines instead of policy standard – LMG + resin instead of new foundation
Chosen representative must adequately embody the group (eg Cam Preston in SR action)
7Group Actions: further considerations
Doesn’t matter that individuals may need separate assessment after common issue ruled on by Court
Doesn’t matter relief relates to separate contracts: eg different variants of same policy but same issues still arise (eg as when new)
Identity of some members unknown (can join action after case filed; eg EQC and SR actions) – limitation
Can have subgroups
8Group Actions: Why?
Aggregating lots of smallish claims into one big one together makes litigation costs relatively small and thus more economic
Also levels playing field – prevents insureds being picked off
Destresses – support aspect via a group
Group committee
9What is litigation funding?
Enables a plaintiff to sue without having to pay
No win, no fee from many fundersPlaintiff protected from costs award if
case lostFunder posts security
10Litigation Funding: Why?
Access to justice Allows claims that would not be brought to occur
Enables claimants to transfer risk and cost of litigation while still benefiting from proceeds of a win
Access to experienced lawyers and experts
11Team
Sarah Miles Kalev Crossland and Shieff Angland Neil Campbell QC University of Canterbury Law Students Various engineers, QS, surveyors Collaborate with legal academics
12Where to from here?
LPFNZ based litigation funder In serious talks LPF – doing PSA kiwifruit claim, highly
credentialed directors Gather claimants Identify common claims
13What does litigation funder need?
Identified claims Legal opinions on claims Expert opinions on claims Claimants? Online survey Details on Sarah’s blog
14What classes of claims and a new remedy?
Building settlement: floodplain datum MBIE guidelines versus policy standard Failed repairs Unjust cash settlements
Remedy: Stripping insurers of profits generatedfrom delayed payment and lowball settlementsCf Judicature Act
15How it would work
Members sign up online 1 page document
Interviewed, documents collected and collated Submit application to LPF File claim and permission as representative action Dedicated website/app Info and updates Litigation committee
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Kalev Crossland Partner