New Zealand Supreme Court’s Ruling Affirms Importance of Access to Justice in Common Fund Orders
When it comes to funded class actions, most attention is paid to those proceedings underway in the UK, US and Australia. However, a recent ruling from New Zealand’s highest court has once again highlighted its position as a welcoming jurisdiction for funders and plaintiffs pursuing these group proceedings.
In an article on Lexology written by Nina Blomfield, James Caird, Jania Baigent, and Alice Poole from Simpson Grierson, these litigators analyse the impact of a recent decision by the New Zealand Supreme Court to reject a challenge to common fund orders (CFOs) in class actions. The ruling handed down at the end of 2024 saw the Supreme Court deny ANZ and ASB’s application for leave to appeal a lower court’s decision, which had reaffirmed the courts’ ability to allow CFOs to be made at an early stage of proceedings.
The origin of this appeal came from a 2022 High Court ruling, which confirmed the court had the jurisdiction to make a CFO in a class action but also ruled that it was too early to make a CFO prior to the conclusion of the stage 1 hearing. Two years later, the Court of Appeal affirmed the High Court’s decision on jurisdiction and went a step further in ruling that CFOs being made at an early stage of the litigation was beneficial in furthering access to justice.
In its decision, the Supreme Court found that both lower courts had ruled correctly, and when it came to the issue of timing re-emphasised the importance of access to justice. The justices highlighted the Court of Appeal’s reasoning that “access to justice is best achieved through a CFO being made as early as possible in a proceeding”, which in turn “gives the litigation funder a degree of assurance in relation to its return on its investment”.
The authors describe this decision as “a significant win for litigation funders and class action plaintiffs” and highlight the courts’ repeated “strong focus on access to justice in representative proceedings.”
The Supreme Court’s full judgment on the application for leave to appeal can be read here.