High Court delivers major setback for litigation funding

• The High Court has ruled existing legislation does not permit the making of 'common fund orders' in class action proceedings
• The decision is a significant setback for the business of litigation funding and plaintiff law firms operating in Australia
• Existing common fund orders made in class action proceedings could be challenged
• Legislative intervention will be required if courts are to make common fund orders in the future

The High Court's decision

On 4 December 2019, the High Court handed down its decision in the Westpac and BMW class action proceedings.¹ The High Court overturned the decisions made by the historic joint sitting of the Full Federal Court and the NSW Court of Appeal.²