Since procedural funders are not legal representatives of the party to the funded proceeding, clients typically enter into two agreements: (1) a standard retainer agreement with a lawyer indicating the scope and conditions under which legal services will be provided; and (2) a process funding agreement with the funder setting out the terms and conditions for funding the processes. Typically, the funder and lawyers do not have a direct contractual relationship, although clients often intend to report their lawyers directly to the funder. Funders may agree to pay some or all of the attorney`s fees during the proceedings. If attorneys` fees are partially deferred, they are usually recovered from each settlement amount if a successful result is achieved. Sometimes the lawyer also agrees to take on some financial risk with respect to attorneys` fees if the claim is unsuccessful. In April 2013, ASIC published a regulatory guide detailing how procedural funders can meet conflict of interest management obligations (the ASIC Guide).35 The ASIC Guide describes actual, potential and current or future conflicts of interest that may arise in litigation related to competing interests between the funder, lawyers and complainants. The ASIC guide requires donors to have robust provisions in place to identify and assess competing interests and conflicts and respond when needed.36 The rules require funders to develop their own conflict management policy, commensurate with the nature, scale and complexity of the process systems funded, taking into account that the financing measures are very different37. s Purpose of the legislative class action regime The Tribunal found that the evolution of the financing of trials and class actions had not been taken into account by Parliament when it was adopted and that “it was time for the court to continue to take into account the interests of class members with regard to the adequacy of trial funding costs”. A recent decision of the Ontario Superior Court of Justice ruled for the first time that a third party could fund a plaintiff`s class action in that province.
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