Disclosure Of Litigation Funding Agreements In Australian Class Actions

Key Points

• The Federal Court of Australia practice note dealing with class actions requires that litigation funding agreements be disclosed, subject to redactions to conceal information which might reasonably be expected to confer a tactical advantage on the other party.
• Legal professional privilege is not generally available as a ground to protect the agreement from disclosure.
• However, certain types of clauses in a funding agreement can be redacted due to confidentiality, if disclosure would confer a tactical advantage on the opposing party. This may include:
  
  
  • Specified percentage amounts and other potential rewards to which the funder might be entitled;
  • Details of an agreed settlement mechanism that may be able to be exploited for tactical advantage; and