i think the worst part of the whole sorry deal was the amount of money the litigation lenders made out of the settlement. The presiding judge was critical of the costing but unfortunately the clients had signed up to the costing, even received independent legal advice.
usually what happens in these class actions is that one specific client and case will be selected and the proceedings commence. If and when that client is successful then all those who have signed up and are waiting in the wings join the4 action. From one client the number then grows, all with their own costs to be recovered. Depending on the settlement, the costs are assessed and usually are a separate amount to the amount of damages agreed upon. In some cases, the parties agree on a figure, inclusive of costs, and that is where the issues can arise.
One has to remember through this whole sorry episode is that the clients agreed to this course of action, even after receiving independent legal advice.
In litigation, if a person is under any incapacity such as infancy, disability or lack of intellectual capacity or education, a guardian ad litem is appointed by the courts to assist the plaintiff. This person then has the role of ensuring that the represented person is not at any disadvantage due to their incapacity.
In Australia, if a lawyer acts on your behalf in a civil proceeding, there can be no contingency agreement. Unlike the USA, a lawyer cannot have an agreement where he or she receives a percentage of the amount awarded. the lawyer can only bill for work done, irrespective of the amount awarded. Sometimes you hear people saying they x amount but it all went to the lawyers. That is incorrect. Sometimes a defendant or their insurer will settle a case with amount to cover the plaintiff's legal costs plus a small amount left over. That is usually in weak cases and a commercial decision was made by the defendant or their insurer.
in the case the ABC is reporting on, the parties went in with the understanding that they were not only paying legal costs but also the funding of the case for disbursements paid by a litigation lender. Their actual damages awarded were small. However, the litigation continued over several years. I imagine the costs on the other side were also pretty hefty. The settlement was also subject to court approval.
In relation to the person who is named as the plaintiff in class actions there is usually a set process. In running a class action one usually names the person with the least to lose should the case be unsuccessful. If the plaintiff has little money and lives in a tent there is not much that a successful defendant can do financially to that person if costs are awarded in their favour.
In any event, a bit of lawyer bashing is always lots of fun. Just drop a few hazy details, don't explain the process behind it and then all climb on board. In this case, they billed everything they could and were entitled to. It's a business to some and to others it is a calling. Like all professions some like to help others and some like to help themselves.
