Hall v Arnold Bloch Leibler

BEACH J: 1 The applicant seeks approval of the settlement of this proceeding pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth). 2 In support of his application, he relies upon various material including the settlement deed, the confidential opinion of counsel and the proposed settlement distribution scheme (SDS), which includes the loss assessment formula. The applicant also relies on the report of the special referee, Ms Cate Dealehr, who I appointed late last year for the purpose of assessing the reasonableness of the applicant's legal costs and disbursements. 3 In summary, in my view the settlement is fair and reasonable overall and in the interests of group members, and the distribution protocol set out in the SDS is fair and reasonable in terms of its deductions and as between the group members inter se. 4 Based upon the confidential opinion of counsel, the settlement sum of $28 million is justifiable on a risk-weighted basis, and also on the basis that it be distributed only to registered group members, with unregistered group members receiving no distribution. There is an interest in finality in litigation such that I consider it to be fair to exclude from participation in the settlement unregistered group members as at the date of today's hearing. But I do consider it to be fair to admit persons who have sought to register late but prior to today's hearing. I will make orders to regularise that arrangement.

Relevant background 5 This proceeding arises out of the acquisition by Slater & Gordon Limited (SGH) of the UK-based Professional Services Division (PSD) from Quindell Plc in April 2015, partly funded by a not insubstantial pro-rata accelerated renounceable entitlement offer by SGH of new ordinary shares. The entitlement offer was made without a prospectus, purportedly in accordance with s 708AA of the Corporations Act 2001 (Cth) as modified by ASIC Class Order 08/35. 6 On 17 September 2019, the applicant commenced the present representative proceeding against Arnold Bloch Leibler (ABL) pursuant to Part IVA of the Act on his own behalf and on behalf of other persons who had acquired an interest in fully paid ordinary shares in SGH in the period between 30 March 2015 and 25 November 2015. This proceeding was the third of three proceedings commenced by the applicant on behalf of overlapping group members arising out of the steep declines to SGH's share price which ensued upon the acquisition of PSD and which resulted in the near insolvency of SGH. The first of these, Hall v Slater & Gordon Ltd (VID 1216 of 2016) (the SGH class action) was settled in late 2017, and at a time when SGH was on the verge of insolvency. The settlement involved payment over of the bulk of the insurance available to it. Such circumstances apparently led to attention being turned to professional advisers and other third parties who may have contributed to the events which resulted in the alleged harm to shareholders of SGH, the primary wrongdoer. Shortly prior to the settlement of the SGH class action, points of claim were served identifying that SGH's auditors, Pitcher Partners, and ABL were such parties against whom the applicant considered claims could be maintained on behalf of group members, but the joinder application was never determined. In the settlement of the claims against SGH, the applicant had taken steps in the relevant settlement deed to preserve his third party claims. 7 Following these events, the applicant commenced a separate proceeding against Pitcher Partners (Hall v Pitcher Partners (a firm) & Anor (VID 918 of 2018) (the Pitcher proceeding)), on behalf of persons who had acquired an interest in fully paid ordinary shares in SGH in the period between 30 March 2015 and 24 February 2016. And as I have said, in 2019 the applicant subsequently commenced the proceeding now before me. 8 The applicant alleges that ABL had been engaged by SGH to act as its Australian legal adviser for the entitlement offer, including acting on the due diligence for the entitlement offer, but that ABL failed to ensure proper disclosure of the risks associated with the proposed transaction to acquire PSD in the entitlement offer documents, which were released to the ASX on 30 March 2015, and in particular the specific risk known as the small claims track threshold reform and the impacts it would have on the business being acquired. Causes of action have been pleaded against ABL on behalf of all group members for misleading and deceptive conduct and, in relation to the sub-category who acquired SGH shares in the entitlement offer, negligence. 9 The present proceeding was commenced as an open class representative proceeding. There are over 4,800 group members, with 9,504 separate holdings, who have registered (registered group members), of which around 75% by number and 69.95% by claim value have entered into litigation funding agreements with International Litigation Partners No 15 Pte Ltd (the funder). 10 In this proceeding, ABL has brought cross-claims against SGH and SGH's then associated individuals, Grech and Brown. The SGH parties have in turn brought cross-claims against the applicant and group members premised on obligations arising under the deed of settlement approved by the Court in the SGH class action and the shareholder claimant scheme approved by the Court (In the matter of Slater & Gordon Ltd (VID1146 of 2017)). 11 This proceeding and the Pitcher proceeding were listed together for a trial commencing on 9 November 2021 that was scheduled to conclude on 23 December 2021. An in-principle settlement in this proceeding was reached following an unsuccessful mediation. The trial of the Pitcher proceeding commenced before Middleton J on 9 November 2021 and concluded on 23 December 2021. Judgment is reserved. 12 The present proceeding settled after the applicant had served all his evidence, ABL had served all its evidence and the SGH parties had served their evidence. 13 On 19 October 2021, the parties agreed upon terms for the proposed settlement and entered into heads of agreement. A settlement deed was then signed on 16 November 2021. As I have indicated, under the settlement deed ABL is to pay the sum of $28 million in settlement of the claims of the applicant and group members, which settlement sum is to be distributed to registered group members in accordance with the SDS, following the deduction of amounts representing the applicant's legal costs and disbursements, funding commission and administration costs.

The settlement and the SDS 14 Before turning to some particular aspects of the settlement and SDS, I should say something about the relevant principles. 15 The principles by which one determines whether an order should be made under s 33V(1) are not in doubt. The primary focus is whether the settlement amounts to a fair and reasonable compromise of the claims made on behalf of group members considered as a whole, and as between the group members inter se. 16 Now there is no one or obvious way in which a settlement should be framed, either as between the group members and the respondent or in relation to sharing the compensation amongst the group members. As to the first dimension, reasonableness is a range. The question is whether the proposed settlement falls within that range. It is not my task to second-guess the tactical or other decisions made by the applicant's legal representatives, but rather to satisfy myself that such decisions are within the reasonable range of decisions, having regard to the circumstances which are knowable to the applicant and his representatives and a reasonable assessment of risks based on those circumstances. 17 In relation to the second dimension concerning fairness inter se, a concern is to confirm that the interests of the applicant or signed-up clients of his solicitors are not being preferred over the interests of other group members. The distribution protocol should be framed to achieve a broadly fair division of the proceeds, treating like group members alike, as cost-effectively as possible. I should say now that I am so satisfied concerning the SDS, and also as to the proposed distributions which I will authorise under s 33V(2). 18 I should also say before proceeding further that I am satisfied that the opinion of counsel has adequately addressed the complexity and likely duration of the litigation, the risks of establishing liability, the risks of establishing loss or damage, the range of reasonableness of the settlement in light of the best recovery and the range of reasonableness of the settlement in light of all other attendant risks of litigation. 19 Further, in this context I should also note that the claims brought by the applicant against ABL were apportionable claims. Arguably there were concurrent wrongdoers including SGH, with whom the applicant had settled in 2017, and Pitcher Partners. The applicant only sought to hold ABL responsible for the proportion of the loss that the Court considered just, having regard to the alleged extent of ABL's responsibility for the damage or loss. ABL pleaded that each of the SGH parties, the relevant SGH directors, Pitcher Partners and Ernst & Young (UK) were concurrent wrongdoers under Federal and State proportionate liability schemes. Now because this proceeding was to be heard at the same time as the Pitcher proceeding, the comparative responsibility of ABL could arguably have been outweighed by other parties, in particular the SGH parties and Pitcher Partners. These risks have also been taken into account in assessing the reasonableness of the settlement. I need not comment further, save to say that I have considered the opinion of counsel and these matters have been adequately addressed. 20 Let me now turn to some particular matters.

Deduction of legal costs and disbursements and settlement administration costs 21 In terms of the SDS, provision is made for the deduction of the reasonably assessed costs of the proceeding prior to any distribution being made to group members. Pursuant to my orders of 7 December 2021, Ms Dealehr was appointed for the purpose of conducting an inquiry and making a report stating her opinion on the reasonableness of the applicant's legal costs and disbursements incurred in relation to the proceeding, up to and including the approval of the proposed settlement of the proceeding including costs anticipated and yet to be incurred as at the date of the report, and the reasonableness of the sum proposed for settlement administration costs. I received her report yesterday, and in it she has applied various discounts to the costs sought. I have accepted all of her discounts. As for the settlement administration costs, on the component that she assessed she made no discount. But in any event I have allowed more for the reasons discussed with counsel for the applicant this morning upon which I need not elaborate further.

Deduction of litigation funding charges 22 What is proposed is that costs including the funding commission are spread over all group members who participate and take the benefit of the settlement whether they are funded registered group members or not. That of course is appropriate. 23 Now as for the funding commission, the funder seeks 28% of the settlement sum. I will allow this. It compares favourably with the contractual entitlement where the stipulated rates ranged from 30 to 35% based upon certain contingencies. I will return to the percentage in a moment, but let me at this point say something about mechanisms. 24 Under s 33V there is power to approve a settlement which contains within it a remuneration/profit component, that is, a common fund order (CFO) where the amount sought is a fair and reasonable sum for the litigation funding provided, even if it is not a contractually incurred cost. 25 There is also power to make a fund equalisation order (FEO). Two different formulae for equalisation have been employed so far as litigation funding commissions are concerned. 26 The first method worked by notionally deducting from the share of the settlement attributed to unfunded group members, that is, those people who had not entered into funding agreements but had identified themselves prior to the settlement, amounts equal to the funding costs that would otherwise have been payable by them if they had entered into a funding agreement, and then distributing those notional amounts across the whole class. The formula then redistributed the notional amounts calculated on that basis, so that the net outcome to both the cohort of funded group members and the cohort of unfunded group members was the same. It did it in this way because the juridical basis of the formula was that it was the funded group members' contracts which authorised the deductions. In other words, the formula allocated more money to the funded group, so that after the funder's contractual entitlements were satisfied the funded group was in the same position as the unfunded group. Counsel before me have described this as FEO method 1. 27 The second method worked by redistributing the amounts which the funded group had collectively agreed to bear across the whole group, so that the whole group shared the expense contractually incurred only by the funded group. Counsel have described this as FEO method 2. But that was not the way in which the formula had traditionally operated, and the arithmetical difference between the two methods is significant. 28 Both FEO method 1 and FEO method 2 were predicated upon the basis that benefiting group members should pay costs which benefited them. Both methods have continued to be used. 29 In the present case, the SDS makes provision for a deduction of $7.84 million to the funder by way of commission, which is calculated at a rate of 28% of the gross settlement sum. The amount proposed to be deducted in the SDS by way of CFO exceeds the FEO amount whichever method is applied. But the following matters support the proposed order approving the CFO-derived commission. 30 First, were it not for the funding provided, the applicant would not have been able to bring or maintain the class action or procure the settlement sum. 31 Second, the funder has in fact provided the funding. The funder has paid legal costs and disbursements of approximately $3.5 million in funding the claims whilst bearing the risk associated with these proceedings. And the funder has assumed the risk of significant adverse costs orders. 32 Third, the funder assumed the risks associated with these proceedings at the beginning of the proceedings as a whole in 2016, at a time when it could not be known the stage at which the proceeding would settle, which was almost on the eve of trial as events transpired. 33 Fourth, the commercial value of the services provided by the funder to any particular group member was, at the time the proceeding commenced, struck by reference to the rates of commission for which the litigation funding agreements signed by the funded group members provides, namely, a weighted average of 30.5%, which is higher than the rate sought by way of the CFO. 34 Fifth, the s 33V notice informed group members of the amount that was being sought, but the registration and objection process produced no substantive objections. The opt out notice of 20 July 2021 had also informed group members that the Court would be asked to approve the reasonable remuneration of the funder, through a CFO or FEO or other expense sharing order "such that group members who benefit from a favourable settlement outcome … pay to the litigation funder an amount in respect of commission that would have been payable if those group members had entered into a litigation funding agreement with the litigation funder (being 30% to 35%) or some lesser amount which the Court considers reasonable in the circumstances". 35 Sixth, the funding commission rate sought is within the broad parameters of the funding commission rates available in the market, especially at the time it was first offered in 2016 which is when the litigation funding for the litigation as a whole was put in place. In the SGH class action settlement, the Court approved a CFO at $8 million (21.92% of gross), but that proceeding settled within a relatively short period of its inception, and with few substantive steps in the litigation having been undertaken. The present proceeding was a different and riskier proposition, being an apportionable claim maintained against a secondary actor as part of a complex set of claims. 36 Seventh, the funder has taken out after the event insurance, but it has not proposed to charge the group separately for the cost of that cover, which is a significant cost. 37 Eighth, it is apparent on the material that the funded group members have a potential contractual exposure to pay the funder a proportion of the funder's Pitcher proceeding costs. If the funder insisted on that payment out of the settlement sum, the question would arise as to whether those costs should in fairness be spread across the whole group, given that their inclusion as a charge to the funded group members would lead to a materially different return from the proceeding on behalf of the funded group members, when compared to the unfunded group members. But the funder is not seeking for these costs to be paid from the SDS. But had the funder done so, it may have been able to obtain an order requiring the funded group members to contribute to these costs. Such an impost may then have had to have been equalised over the group members as a whole. Conversely, by not seeking payment of the funder's Pitcher proceeding costs now, the funder is subject to risk, which is a benefit to the group members. This is also supportive of the reasonableness of the commission. 38 In my view a 28% CFO is commensurate with the factors which can properly be taken into account when fixing a CFO rate, particularly when it is understood that that approach is predicated upon the funder not seeking to recover now the funder's Pitcher proceeding costs. In all the circumstances, the proposed deduction of a 28% commission from the settlement sum and the making of a CFO order is fair and reasonable and in the interests of group members.

Applicant's reimbursement payment 39 The SDS makes provision for a deduction from the settlement distribution fund, namely a reimbursement payment to the applicant of $16,800. Given the small sum involved I consider this deduction to be appropriate. Where a claim is made in such a small amount, which is supported by evidence in affidavit form verifying that the applicant has spent time acting on behalf of group members, it is appropriate to proceed without requiring detailed documentary proof of time expended.

Fairness and reasonableness of the settlement distribution formula 40 Now accounting or arithmetic exactitude is not usually to be expected of settlements of the type under consideration. There is a balance to be struck between the fine-tuning of settlement allocations, and the costs of undertaking an exercise which is designed to ensure that each group member receives such proportion of the settlement sum as reflects that member's own claim and the likelihood of individual success in respect of it. But the SDS does adopt an arithmetically appropriate means of dividing the settlement distribution fund among group members in what may be considered to be a fairly exact manner. I need not linger on the LIFO mechanism. Moreover, there is no basis to differentiate between different cohorts of group members in terms of the ultimate strengths of their claims or the discounts that should be applied for liability, causation, loss and apportionment. Further, the parameters of the settlement distribution formula, so far as treatment of the net amount to be distributed is concerned, is the same as was adopted for the overlapping group in Hall v Slater & Gordon Ltd in the 2017 settlement.

Other matters 41 There are other issues that have been drawn to my attention. 42 First, in terms of the notice to group members, there has been non-compliance with orders 3(b) and (d) of my orders of 7 December 2021. On 7 December 2021, I made orders for a notice to be issued to group members in the form approved. The primary methods for notification was for Maurice Blackburn to cause the notice to be sent to each current registered group member via email or failing that via ordinary mail, and for the website text and notice and other documents to be placed on Maurice Blackburn's website. Those orders were complied with. The notice was also published in the Australian Financial Review in accordance with order 3(c). These were the same primary means of distribution of the opt out notices in this proceeding. But due to an oversight, the other methods of notification contemplated by order 3(b), where the notice was to be distributed through shareholder alert services, and order 3(d), where a link to the website text was to be posted on Maurice Blackburn's social media accounts, were not complied with in the time specified in the orders. The notice was distributed through shareholder alert services on 22 February 2022, and a link to the website text was posted on Maurice Blackburn's Twitter and Facebook accounts on 24 February 2022. Of course, these were subsidiary methods of communication which were in addition to the primary mechanisms used for distribution of the notice and opt out notices. 43 Notwithstanding the oversight, in my view there has been adequate notification to group members, and any late registrants are adequately protected. Since the commencement of the SGH class action, there has been a high-level of publicity surrounding the events giving rise to this proceeding. Therefore, affected SGH shareholders were unlikely to be unaware of at least one or more of the SGH-related proceedings and the related registration processes. Further, only one institutional group member registration has been received by Maurice Blackburn in response to the shareholder alert sent on 22 February 2022 and there has been no response to the social media alerts from potential new registrants. I note that the shareholder alert is a channel most frequently used by institutional investors and claims aggregators; most of those shareholders have already signed up. 44 There have been additional registrations received by Maurice Blackburn from group members wishing to participate in the settlement of the proceedings. The number of shares acquired by those group members comprise less than half a percent of the total number of shares acquired by existing ABL group members. In my view the inclusion of those group members would not unacceptably dilute the entitlements of existing ABL group members. In these circumstances it is appropriate to provide for the date for registration in my orders made on 7 December 2021 to be extended nunc pro tunc to 4.00 pm on 3 March 2022. 45 Second, only one group member has objected to the proposed settlement and that objection was received out of time. That objection contends that the settlement "doesn't appear to be based on accepted culpability". Now that statement is correct. The settlement is on a no admissions basis. ABL has denied any culpability. But as I am satisfied as to the fairness and reasonableness of the settlement sum, this objection is no barrier to settlement approval, particularly given the risks involved in attempting to prove culpability. 46 Third, let me say something about releases. The settlement deed contains terms by which the applicant and group members give releases to ABL and ABL releases persons from all and every existing claim and any other claim that he and the group members may have in relation to or howsoever connected with the proceeding and the subject matter of the proceeding. The deed also contains a term that subject to payment in accordance with the terms thereof, the SGH parties and each of them release the applicant and group members from the SGH cross-claims and any claim arising from the subject matter of the SGH cross-claims. The deed also provides that the parties release one another from any unpaid costs order, including any order in proceeding Arnold Bloch Leibler v Slater & Gordon Ltd (VID 54 of 2020). In my view, in substance the releases do not extend beyond matters the subject of the proceeding so as to effect releases of unconnected claims. I therefore consider it fair and reasonable and in the interests of group members to give the releases as the price for the settlement.

Conclusion 47 In summary, based on the relevant calculations, group members will receive 53.52% of the settlement sum, the funder will receive 28% and the balance will be allocated to costs, disbursements, settlement administration expenses and the applicant's reimbursement payment. These allocations are fair and reasonable. 48 For the foregoing reasons, this morning I approved of the settlement under s 33V(1) and made consequential orders, inter-alia, under s 33V(2). I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach.

SCHEDULE OF PARTIES VID 1010 of 2019 Cross Respondents Second Cross Respondent ANDREW ALEXANDER GRETCH Third Cross Respondent WAYNE BROWN Cross Claim Second Cross Claimant: WAYNE BROWN