As noted in in the ‘track the process of the case’ section, at the Class Issues hearing in May 2022, the plaintiffs applied for ‘common fund orders’ or CFOs. 

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A CFO is a court order which provides that, in the event that the plaintiffs achieve a successful outcome (whether it be a settlement or a judgment in their favour) the costs incurred by the plaintiffs (and paid by the litigation funders) (Project Costs), together with the funders’ commission fee, will be deducted from the total sums paid by the defendants before the money is distributed amongst eligible class members.  

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In the 29 July 2022 judgment, the High Court held that there is jurisdiction to make CFOs, but declined to make the CFOs sought at this stage of the proceeding.  The plaintiffs have applied for leave to appeal this aspect of the High Court’s decision to the Court of Appeal.   

 

If the plaintiffs succeed on their appeal and CFOs are made then there will be certainty that if the Class Action is successful, and you are entitled to receive a payment, your share of the plaintiffs’ costs and a percentage of your payment will be deducted and paid to the funders and the balance paid to you, whether or not you have signed up to the funding arrangements.   (If the plaintiffs are unsuccessful, or you are not entitled to receive any payment, you will not be required to pay anything.)

 

If CFOs are not granted following the Court of Appeal hearing, CFOs or other costs sharing orders may be made at the conclusion of the proceeding (whether by final judgement or settlement). 

 

Obtaining CFOs early in the proceedings is important because it will provide more certainty for the plaintiffs, class members and funders as to who will contribute to the plaintiffs' costs and the funders' commission and its likely extent.  

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The plaintiffs are seeking CFOs which confirm that the following commission structure (CFO Services Fee) (or such lower fee as the court considers reasonable on settlement or judgment) applies: