How Do the Fiduciary Duties of Solicitors and Issues of Conflict of Interest Impact on Class Actions and Litigation Funding?

27 Pages Posted: 16 Sep 2021

See all articles by Dr Sara Golru

Dr Sara Golru

The University of Sydney, Faculty of Law

Date Written: January 2019

Abstract

Fiduciary duties and issues of conflict of interest heavily impact on class actions and litigation funding, by limiting the ability of lawyers and funders to act in their own self-interest. The fiduciary duties of solicitors require them to act in the interests of the entire class. There is also some academic support for the proposition that litigation funders owe fiduciary duties but the imposition of these duties may be too onerous for funders and a statutory duty of good faith, analogous to the duty imposed on insurers, may be more suitable. Despite the prevalence of conflicts of interest in class actions, the courts have demonstrated their ability to effectively manage such conflicts on a case-by-case basis. However, the courts may require assistance from third parties such as independent court-appointed costs assessors, contradictors, guardians or even a litigation committee in order to limit conflicts and ensure that there are no breaches of fiduciary duty.

Keywords: class actions; litigation funding; fiduciary duties; conflicts of interest

Suggested Citation

Golru, Dr Sara, How Do the Fiduciary Duties of Solicitors and Issues of Conflict of Interest Impact on Class Actions and Litigation Funding? (January 2019). Available at SSRN: https://ssrn.com/abstract=3905636 or http://dx.doi.org/10.2139/ssrn.3905636

Dr Sara Golru (Contact Author)

The University of Sydney, Faculty of Law ( email )

Faculty of Law Building, F10
Sydney, NSW
Australia

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