The New Zealand Supreme Court rendered an interesting decision
on litigation funding agreements, more specifically on the extent
to which they may be invalid based on abuse of process. Litigation
funding agreements are a big issue in Canada right now,
particularly in the context of class actions.
In Waterhouse v. Contractors Bonding Limited
( NZSC 89) the Supreme Court of New Zealand considered
whether the plaintiffs should be ordered to disclose a litigation
funding agreement under the abuse of process principles.
The New Zeland Supreme Court stated that it is not the role of
the courts to act as general regulators of litigation funding
arrangements. It refused to abolish the torts of champerty and
maintenance. The Court concentrated instead on abuse of process and
disclosure of funding agreements.
The Supreme Court held that the fact that there is a litigation
funder and the funder's identity should be disclosed to the
parties when the litigation is commenced. In those circumstances,
no litigation-sensitive material need to be disclosed.
In addition, the Court considers that litigation funding
agreements should be disclosed where an application is made to
which the terms of the agreement could be relevant, especially (a)
applications for abuse of process, either through the tort of abuse
of process or rules prohibiting assignments of bare causes of
action, and (b) applications for costs, which can be awarded
against third parties if the litigation would not have occurred
without their involvement and where they substantially control or
benefit from the proceedings. The Court noted that applications for
security for costs may also necessitate disclosure.
The Court seems to be skeptical of the benefits of funding
agreements on access to justice as funding is only available to
plaintiffs whose claims promise favorable rates of return.
The New Zealand Supreme Court has taken a permissive view of
funding agreements in ordering mandatory disclosure of some
information, and by suggesting disclosure of the terms of the
agreement in some circumstances. It will be interesting to see if
other common law jurisdictions follow, especially Canada.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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