NSW Chief Justice Andrew Bell says the introduction of contingency fees in Victoria has “skewed” the market for class actions.
is “unfortunate”, and warns that solicitors charging contingency fees are breaking lawyer conduct rules.
Chief Justice Bell said there had been a blanket prohibition on contingency fees before 2020, and the new regime had overridden both solicitor conduct rules and the Legal Profession Uniform Law of 2015. Most claims are still backed by litigation funders, who pay a law firm’s fees and seek a percentage of any payout.
“Victoria appears now to be the preferred forum for the hearing of class actions, driven by plaintiff lawyer-funded claims,” said Chief Justice Bell,“This is not, I respectfully venture to suggest, by reason of any perceived superiority of Victorian judges ... but rather and principally, because of the opportunity for solicitors to take a slice of the outcome of litigation.
“It will be interesting to observe whether plaintiff law firms will be prepared to enter into such arrangements in NSW, even in proceedings brought in the Federal Court, prior to the High Court determining the correctness of Blue Sky .”It had also been controversial, “given the historical antipathy to contingency fees, the recognition, hitherto, that the regulation of the legal profession, including importantly in relation to costs, has properly been the domain of state legislatures”.
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