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Can defendants avoid or limit their liability through contractual provisions?

March 15, 2022

Can defendants avoid or limit their liability through contractual provisions?

The following article was contributed by Valerie Blacker and Jon Na, of Piper Alderman. Applicants often confront the proposition, which respondents typically use in their defense, that terms in consumer contracts will effectively exclude or restrict the claims that have been brought. The High Court of Australia recently weighed in on this issue, deciding that a mortgage contained an enforceable promise by the borrowers not to raise a statutory limitation defense in relation to a claim by the lenders, which was commenced out of time. Price v Spoor [2021] HCA 20 In a slight twist to the typical scenario, the lenders were the plaintiffs who brought recovery proceedings after the expiry of the period stipulated in Queensland’s Limitation of Actions Act 1974. The borrowers argued no monies were owed because the claim was well and truly statute barred. Proceedings should have been brought by 2011, but the lender did not file a claim until 2017. In reply, the lender relied on this clause in the contract: “The Mortgagor covenants with the Mortgage[e] that the provisions of all statutes now or hereafter in force whereby or in consequence whereof any o[r] all of the powers rights and remedies of the Mortgagee and the obligations of the Mortgagor hereunder may be curtailed, suspended, postponed, defeated or extinguished shall not apply hereto and are expressly excluded insofar as this can lawfully be done.” The effect of which was said to be a promise not to take the limitation point. The lender’s argument failed at first instance (before Dalton J) but was overturned on appeal (by Gotterson JA on behalf of Sofronoff P and Morrison JA) and then ultimately vindicated by the High Court (Kiefel CJ and Edelman J, with whom Gageler, Gordon and Steward JJ agreed). The public policy principle Part of their Honours’ reasoning was that what is conferred by a limitations statute is a right on a defendant to plead as a defense the expiry of a limitation period. A party may contract for consideration not to exercise that right, or to waive it, as a defendant. That is not contrary to public policy. This, in our view, is akin to agreements frequently entered between prospective parties to a litigation to toll a limitation period (suspend time running) for an agreed amount of time. That can be contrasted with a clause in an agreement that imposes a three- year time limit instead of six, for bringing a claim for misleading and deceptive conduct under the Australian Consumer Law.[1] Clauses of that kind are unenforceable based on a well-established principle that such clauses impermissibly seek to restrict a party’s recourse to his or her statutory rights and remedies, contrary to law and public policy. The “public policy principle” was first identified by the Full Court of the Federal Court in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546. Henjo has been referred to and applied in numerous cases since, and cited with approval in the High Court.[2] This is not to say that contractual limitations can never be effective in limited circumstances – this much was shown in Price v Spoor. The question of whether commercial parties to a contract can negotiate and agree on temporal or monetary limits while not completely excluding the statutory remedies for misleading and deceptive conduct claims under section 18 of the ACL remains debatable[3]  – but those specific circumstances do not arise here. About the Authors: Valerie Blacker is a commercial litigator focusing on funded litigation. Valerie has been with Piper Alderman Lawyers for over 12 years. With a background in class actions, Valerie also prosecutes funded commercial litigation claims. She is responsible for a number of high value, multi-party disputes for the firm’s major clients. Jon Na is a litigation and dispute resolution lawyer at Piper Alderman with a primary focus on corporate and commercial disputes. Jon is involved in a number of large, complex matters in jurisdictions across Australia. For queries or comments in relation to this article please contact Kat Gieras | T: +61 7 3220 7765 | E:  kgieras@piperalderman.com.au — [1] For example in Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246 [2] For example in IOOF Australia Trustees (NSW) Ltd v Tantipech [1998] FCA 924 at 479-80; Scarborough v Klich [2001] NSWCA 436 at [74]; MBF Investments Pty Ltd v Nolan [2011] VSCA 114 at [217]; JJMR Pty Ltd v LG International Corp [2003] QCA 519 at [10]; JM & PM Holdings Pty Ltd v Snap-on Tools (Australia) Pty Ltd [2015] NSWCA 347 at [55]; Burke v LFOT Pty Ltd [2002] HCA 17 at [143]. [3] For example in G&S Engineering Services Pty Ltd v Mach Energy Australia Pty Ltd (No 3) [2020] NSWSC 1721.

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CAT Approves £260M Google Settlement, the Largest Class Payout in the Regime’s History

The Competition Appeal Tribunal has approved the £260 million settlement of the opt-out collective action brought against Google on behalf of thousands of UK app developers, clearing the way for the largest distribution to class members the Tribunal has sanctioned since the UK's collective proceedings regime began in 2015.

Of the total, £160 million is earmarked for eligible developers, including sole traders and small businesses that sold apps or digital content through the Play Store from August 2018 onwards. The remaining £100 million covers the funding, insurance and legal costs of running the case. Individual payouts will be calculated on each developer's qualifying Play Store sales during the relevant period, and eligible businesses are being directed to the claim website to register ahead of the claims process opening.

As reported by City AM, the claim alleged that Google abused a dominant position by imposing unfair and excessive commissions on developers distributing through the Play Store. Google settled without any admission of liability or wrongdoing, saying it was pleased to reach agreement subject to court approval.

For the funding market, the approval resolves the question hanging over the case since August. Bench Walk Advisors financed the proceedings, and the professional parties agreed to forgo £34 million of their contractual entitlement, bringing their combined return down to the £100 million the Tribunal has now approved. The Tribunal's willingness to sanction a settlement of this size, with costs and funder returns disclosed and reduced in advance, gives funders a concrete benchmark for what the CAT will treat as just and reasonable.

Commercial

An LFJ Conversation with Eric Schurke, CEO, North America, Moneypenny

Below is our LFJ Conversation with Eric Schurke, CEO, North America at Moneypenny.

Eric Schurke is CEO, North America at Moneypenny, a global leader in customer conversations. He is passionate about the intersection of people, communication and technology, and how businesses can use AI to improve customer experience without losing the human judgment and empathy that build trust. He regularly writes and speaks on customer experience, AI and people-first leadership.

Moneypenny's consumer research found that 38% of people aren't comfortable using AI for any legal communication, rising to 51% among Baby Boomers. For funders and the firms they back, where is the line between what AI should handle at intake and what still needs a person on the phone?

I don't think the answer is to draw a fixed line between AI and people. The key is designing an intake process that understands when one should give way to the other.

AI can be incredibly useful at the beginning of an enquiry. It can answer straightforward questions, gather basic information, establish the reason for contact, capture key details and make sure an enquiry reaches the right place quickly. Those are all areas where speed and consistency can improve the experience.

But legal and funding conversations aren't always straightforward. Someone may be worried, confused or dealing with a difficult situation, and there will be moments when they want reassurance or need to explain something that doesn't fit neatly into a predefined process. That's where a person becomes essential.

Our research is a reminder that businesses can't assume everyone is comfortable with AI. The best systems give people choice and make the transition to a human seamless, with the context already captured so the claimant doesn't have to start again.

For me, the principle is simple: use AI for speed and structure, and people for judgment, reassurance and trust.

You've argued that funders often win or lose an opportunity before case review even begins. What actually happens in those first few minutes of contact that determines whether a claimant stays in the process?

Those first few minutes answer some very basic but important questions for the person making contact: Have I reached the right place? Does this organization understand what I need? Is someone taking me seriously? And what happens next?

Good intake needs to gather enough useful information to move an enquiry forward without making that first interaction feel like an interrogation. That's why I think first contact deserves more attention. It's not simply an administrative stage before the "real" work begins; it's where trust and momentum start to form.

If the experience is slow, confusing or impersonal, a claimant may disengage before the funding team has even had an opportunity to assess the case. Get it right, and the claimant understands the next step while the funder has the context needed to progress the enquiry.

Most intake technology is sold on volume - enquiries handled, calls deflected, hours saved. Why are conversion and client outcomes the better measures, and what does a funder lose by optimizing for the wrong one?

Volume tells you how busy the system is. It doesn't necessarily tell you whether it's working.

You could automate thousands of interactions and reduce handling time considerably, but if good enquiries are dropping out, information is incomplete or people are having to contact you again because nothing was resolved, you've created efficiency on paper rather than value for the business.

I'd ask: Did the enquiry progress? Was the right information captured? Did it reach the right person? Was unnecessary follow-up avoided?

That's the real ROI of a conversation. Passing a message is activity; gathering what's needed for the next stage creates progress. For funders, optimizing purely for volume risks making the top of the funnel look efficient while valuable opportunities are being lost underneath it.

There is a wider lesson here for AI, too. We're seeing businesses invest heavily in technology without always being clear about the outcome they're trying to improve. That's where an AI value gap can emerge; when adoption increases, but the commercial return doesn't necessarily follow.

Consumer legal funding is drawing more state-level regulation in the U.S., much of it centered on disclosure and how claimants are communicated with. How should that shape the way a funder designs an AI-assisted intake process?

It makes clear boundaries and good governance even more important.

I'm not a lawyer, so I wouldn't tell funders how to interpret individual state requirements, but from a customer communication perspective, AI should make a compliant process easier to follow, not harder to understand.

Funders need to define what an AI system can say and do, what information it can collect and when human involvement is required. If a conversation involves important disclosures, nuanced questions or judgment, there should be a clear escalation path.

Technology can support consistency, but it shouldn’t remove human oversight. In a regulated environment, knowing what your AI shouldn’t do can be every bit as important as knowing what it can. I’d build the guardrails at the beginning rather than adding them after deployment.

Looking out two to three years, what does a well-run intake operation at a litigation funder look like, and which parts of it do you expect will still be human?

I think the best intake operations will feel simpler to the claimant, even though the technology behind them will be more sophisticated.

AI will increasingly handle predictable work: answering routine questions, gathering and structuring information, identifying missing details, scheduling next steps and routing enquiries with the right context. It will also work behind the scenes, reducing administration and helping people find information quickly.

What won't disappear is the human role at the moments that matter most. When somebody has a complicated story, is uncertain about the process, needs reassurance or simply doesn't fit the expected pattern, judgment and empathy will remain essential.

So, I don't see the future as AI-led or human-led. It will be intelligently blended. The best technology will almost disappear into the experience; the claimant will simply feel understood and know they're moving forward.

Commercial

Burford Prices Secured Notes at 8% as It Swaps $400M of 2028 Debt for $300M Due 2029

Burford Capital has set the terms on the refinancing it launched at the start of the week, pricing $300 million of senior secured notes at a coupon of 8.000% and locking in the cost of retiring its nearest maturity.

As reported by PR Newswire, the notes are due 2029 and will be issued by Burford Capital Global Finance LLC, an indirect wholly owned subsidiary. Burford Capital Limited is guaranteeing the paper, which is secured on a senior lien basis by substantially all of the issuer's assets and by the capital stock of certain subsidiaries, subject to exceptions.

The pricing carries a clear message about the funder's cost of capital. The 8.000% coupon on secured paper sits well above the 6.250% Burford is paying on the unsecured 2028 notes it is redeeming, and the company is putting up collateral to get there. Against that, the transaction takes $100 million of gross debt off the balance sheet, since net proceeds plus cash on hand will retire all $400 million of the 2028 notes.

The offering is expected to close on September 17, subject to customary conditions, with redemption of the 2028 notes to follow as soon as practicable afterwards.

The notes are being placed privately and have not been registered under the US Securities Act, with distribution limited to qualified institutional buyers under Rule 144A and to non-US persons under Regulation S, in each case also qualified purchasers under the Investment Company Act.