The Supreme Court has slammed the door on a defendant’s bid to reverse a key ruling affecting how litigation funders can be paid in class actions before the Competition Appeal Tribunal.
In Apple Inc and others v Gutmann, the court refused Apple permission to appeal on the basis that its application did not raise an arguable point of law.
Last April, the Court of Appeal held that a litigation funder’s fee can be paid from damages before they are distributed to class members. The case was an important victory for funders as it made clear that they are not restricted to taking their payment from undistributed damages, with the risk that there may not be enough money left to cover their fees.
The appeal court’s April ruling clarified the meaning of sections 47C(3) and (6) of the Competition Act 1998 and the associated Rule 93 of the CAT Rules 2015, confirming that the CAT has a discretionary power to order the payment of a class representative’s costs, fees, and disbursements; subject always to its supervisory jurisdiction in ensuring that payments to stakeholders are fair and reasonable.
Law firm Charles Lyndon, which acts for class representative Justin Gutmann, said the Supreme Court’s refusal to hear the appeal brought welcome certainty for all stakeholders in the collective proceedings regime and confirmed the CAT ‘is empowered broadly to use its discretion in the face of the myriad different circumstances it may be faced with at the conclusion of proceedings’.
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