In a dramatic move the leading litigation funding group LPF Group have laid a complaint against chief justice Dame Sian Elias alleging that her actions had brought a “breach of natural justice, judicial bias and a failure to disclose potential conflicts of interest.”
In a press release issued today, the company, of which former Supreme Court Justice Bill Wilson is a director, said that the case related to the action funded by LPF against PVL Ltd and Pricewaterhousecoopers and the directors of PVL, which LawFuel reported about last week.
“This isn’t a decision LPF Group has taken lightly,” Mr Newland said. “However, the Chief Justice is the most senior judge in New Zealand, and her opinions carry considerable weight in the legal community.”
“Given the potential implications for plaintiffs accessing justice through litigation funding, often against well-resourced defendants typically with large insurance companies behind them, LPF Group feels very strongly that the circumstances need to be investigated in this instance.
“The potential impact of the comments has been highlighted by the way a significant insurance law firm representing the other side in the case has reported the decision in a public newsletter, as “creating uncertainty over litigation funding” Mr Newland said.
“The complaint is not related to the legal outcome of the case. The Chief Justice offered a series of unfair and unjustified opinions which were not related to the legal questions before the Court, and made incorrect and highly concerning remarks about the legitimacy of litigation funding in New Zealand.”
“Further, we believe potential material conflicts of interest with the insurance industry should have been disclosed by the Chief Justice. It was never disclosed to the parties that the Chief Justice’s husband Hugh Fletcher, is chairman of IAG New Zealand Limited which we believe is likely to be an insurer of one of the parties to the case in question and the largest insurer of professional liability in New Zealand.”
“Mr Fletcher is also a director and shareholder of the parent company Insurance Australia Group Limited, which is one of the largest insurers of professional liability in Australasia. The defendants in this case, as in most of the high-profile cases LPF Group is currently funding, have professional liability insurance.”
Mr Newland adds “In any case like this, with prominent directors, and professional services firms involved, it would have been obvious that the defendants had any number of professional liability insurance firms involved. Vero Insurance is even a named party to the claim.”
“Some of the Chief Justice’s historical concerns about litigation funding can be found in the Minutes of the Courts of New Zealand Rules Committee. In fact, the topic of litigation funding arose for discussion at a meeting of the Rules Committee in February 2017 at which counsel for PWC, Bruce Gray QC, was present. That meeting took place just one month before the hearing of the PWC/PVL appeal in the Supreme Court.”
“Many plaintiffs who have suffered losses can’t afford to bring litigation to hold those responsible to account. As in the PVL case, they are often up against well-resourced defendants who have professional liability insurance, and cannot afford many of the delaying tactics employed by defendants and their insurance companies to avoid being held accountable through the Courts.”
“Litigation funding levels the playing field so plaintiffs with meritorious cases can access justice. The Chief Justice’s comments have increased the risks associated with litigation funding which can only make funding less available and increase the cost of obtaining funding for plaintiffs” Mr Newland said.
The matter between the liquidators of PVL and PWC was settled before judgment was issued. The other four judges issued a judgment which indicated how they would have ruled had they been required to – and that ruling was favourable to the liquidators and LPF Group.