UK: Swiftness Does Not Mean ‘First Past The Post'

Last Updated: 23 November 2018
Article by Janette McLennan and Gemma Coulson
Most Read Contributor in UK, March 2019

On 20 November 2018, the Full Court of the Federal Court upheld a decision to permanently stay two out of three open class actions against GetSwift Limited.1

With an increased number of competing class actions being commenced, the Full Court took the opportunity to provide general guidance on the range of factors to be considered and the possible options open to a docket judge in dealing with competing open class actions.  Some of the key inquiries to be undertaken include:

  1. an assessment of the various funding and costs models to identify which model is likely to best motivate the class applicant's solicitor and funder to work assiduously to achieve the best outcome for the applicant and all group members; and
  2. identifying which legal team is likely to secure the best result for the class.

Background facts

Three representative proceedings were filed against GetSwift Limited earlier this year following a significant decline in its share price as follows:

  • on 20 February 2018, a first law firm filed a representative proceeding on behalf of Dwayne Perera as the lead applicant (Perera Proceeding);
  • on 26 March 2018, a second law firm filed a representative proceeding on behalf of Shaun and Samantha McTaggart as the lead applicants (McTaggart Proceeding); and
  • on or about 13 April 2018, Raffaele Webb, represented by a third law firm, was granted leave to file a representative proceeding (Webb Proceeding). 

The filing of multiple actions meant that the Court was faced with three competing open class actions, represented by three different law firms and financially backed by three different litigation funders.

The primary judge requested the respective parties to come up with a detailed proposal of how to deal with the competing class actions, and if only one proceeding was to go forward, which one and why. The submission of each of the applicants was required to include modelling of the comparative returns to the group members.

The parties all agreed that only one proceeding should go forward. Unsurprisingly each applicant submitted that their proceeding should be preferred. 

There were a number of options available to the primary judge as follows:

  1. The proceedings be consolidated. This approach was adopted in Johnson Tiles Pty Ltd v Esso Australia Limited2, but in circumstances where the two competing law firms entered into a joint venture agreement to work cooperatively together and engage only one set of counsel.
  2. One or more of the proceedings be declassed pursuant to section 33N(1) of the Federal Court of Australia Act 1976 (Cth).
  3. The 'wait and see' approach. This approach was adopted in Cantor v Audi Australia Pty Ltd (No 2)3 where there were five competing open class actions.
  4. A permanent or temporary stay or one or more of the proceedings.
  5. Class closure of one or more of the proceedings. This approach was adopted in McKay Super Solutions Pty Ltd (Trustee) v Bellamy's Australia Ltd4. In that case, each competing applicant was content to proceed as a closed class as a fall-back position.

The primary judge decided that only one proceeding should continue on a long term basis, and that proceeding should be the last past the post, being the Webb Proceeding.  At first instance the Perera Proceeding and the McTaggart Proceeding were permanently stayed.

Perera and McTaggart sought leave to appeal the primary judge's decision to stay their respective proceedings to the Full Court of the Federal Court5.

Appeal dismissed

Perera and McTaggart were granted leave to appeal.  However, the appeal itself was dismissed on the basis that the primary judge's decisions that:

  • the Court has the power to stay two of the three competing class actions; and
  • it was appropriate to stay the Perera and McTaggart Proceedings and allow the Webb Proceeding to go forward,

fell within the proper exercise of his discretion. 

One size does not fit all

The Full Court acknowledged that different judges may take a different view on what is the most appropriate course of action and there is no silver bullet for resolving the case management problems that arise from competing class actions. 

The Full Court also made the following comments for further consideration:

  • The Court should not give an undue focus to lower courts and funding charges.  Doing so is likely to promote a 'rush to the bottom' by funders and solicitors keen to win the tender, as has already been seen in the market.
  • The focus should be on selecting the proceeding with a funding and costs model likely to best motivate the applicant's solicitor and funder to work assiduously to achieve the best outcome for the applicant and group members and to take responsible risks in that regard. 
  • The Court should be astute to select the proceedings with the legal team that is most likely to achieve the largest settlement or judgment.
  • The Court must strongly discourage a rush to the Court in large and complex class proceedings.  The Court should consider ordering a standstill in the first filed proceeding to allow other solicitors or funders reasonable time to undertake proper due diligence.
  • When considering a selection process for determining which proceedings ought to be stayed, if that is the determined course, that the interests of the applicant and group members are not damaged in the process and that the process is not unduly expensive.

A friendly reminder

Whilst the Full Court acknowledged the important role solicitors and litigation funders play in providing access to justice, it was critical of the general failure of solicitors and litigation funders to reach an agreement when it comes to consolidating proceedings. The comments of the Full Court in GetSwift serve as a friendly reminder not to forget that the interests of the parties and the group members should always be paramount.


1. Perera v GetSwift Limited [2018] FCAFC 202.

2. (1999) ATPR 41-679; [1999] FCA 56

3. [2017] FCA 1042.

4. [2017] FCA 947.

5. Perera and McTaggart also appealed other ancillary decisions but those matters are outside the scope of this update.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Janette McLennan
In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions