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Looks Dubious – The Third Ground to Restrain a Lawyer from Acting

April 5, 2023

Looks Dubious – The Third Ground to Restrain a Lawyer from Acting

The following piece was contributed by Valerie Blacker, commercial litigator focusing on funded litigation, and Amelia Atkinson, litigation and dispute resolution lawyer at Piper Alderman. Strata Voting Pty Ltd (In Liq) v Axios IT Pty Ltd and Anor[1] is a funded single plaintiff action. It involved a recent examination of the Court’s power to prevent a lawyer from acting in proceedings for a conflict of interest. The authors represented Strata Voting in its successful defense of the restraint application. The Third Ground Less frequently invoked than the first and second grounds (misuse of confidential information and breach of fiduciary duty), the third category upon which to restrain a lawyer in a position of conflict from acting in a matter is known as the “inherent jurisdiction” ground. The Court can restrain lawyers from acting in a particular case as an incident of its inherent jurisdiction over its officers and control of its processes.[2] The jurisdiction is enlivened where there is an objective perception that a lawyer lacks independence such that the Court is compelled to interfere and remove the lawyer from acting in the matter. In other words, the position of the lawyer makes the Court uneasy. The test for intervention is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice, including the appearance of justice, requires that a legal practitioner should be prevented from acting.[3] Axios’ failed application The jurisdiction to enjoin a solicitor from acting is to be regarded as exceptional, and to be exercised by the court with caution. That was the basis on which his Honour Judge Dart of the South Australian Supreme Court dismissed the application brought to restrain Piper Alderman from acting for the liquidators. Here, Piper Alderman is acting for the company in relation to a dispute which was in existence before the winding up commenced.  The liquidator retained Piper Alderman to continue acting for the company for the purpose of the litigation, the subject of the existing dispute. The supposed conflict was said to have arisen from a proof of debt which Piper Alderman lodged for about $47,000 in fees incurred prior to the administration. The argument was that Piper Alderman’s impartiality was impaired by the fact that unless the litigation is successful, Piper Alderman will not be paid its outstanding fees because there will be no funds in the winding up to do so. Axios contended that “the conduct of the solicitor was so offensive to common notions of fairness and justice that they should, as officers of the Court, be restrained from acting”. However, his Honour considered the firm’s status as creditor to be unremarkable. Even in a case where a substantial sum (over $830,000) was owed to lawyers by their insolvent client,[4] there was no risk to the proper administration of justice. As everyone knows, solicitors routinely act in matters where they are owed money including conditional costs agreements, risk share arrangements, contingency fee arrangements and agreements that include uplift fees, to name a few. The restraint application in Strata Voting was unsurprisingly and swiftly[5] dismissed with costs. Conclusion If an opposing party asserts that a lawyer should be restrained from acting for the opponent, it is necessary for a clear case to be made that the lawyer is in a position where he is fixed with an interest of such a nature that he may fail in his overriding duty to the court. It requires proof of facts, and not mere speculation as to motive. The risk to the due administration of justice has to be a real one. Otherwise, a litigant ought not to be deprived of the lawyer of his choice. — About the Authors: Valerie Blacker is a commercial litigator focusing on funded litigation. Valerie has been with Piper Alderman for over 12 years. With a background in class actions, Valerie also prosecutes funded commercial litigation claims. Amelia Atkinson is a litigation and dispute resolution lawyer at Piper Alderman with a primary focus on corporate and commercial disputes. Amelia is involved in a number of large, complex matters in jurisdictions across Australia. For queries or comments in relation to this article please contact Amelia Atkinson | T: +61 7 3220 7767 | E:  aatkinson@piperalderman.com.au [1] Unreported, Supreme Court of South Australia, Dart J, 23 January 2023 (Strata Voting). [2] Kallinicos & Anor v Hunt [2005] NSWSC 118 at [76] (Kallinicos). [3] Ibid. [4] Naczek & Dowler [2011] FamCAFC 179, [84]. [5] In a 5-page judgment.

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Doorway-Backed Simpson Millar Posts £5m Loss and £41.8m Net Liabilities While Buying Two Practices

Simpson Millar LLP, one of the UK's largest consumer law firms and a flagship investment for specialist legal-sector capital provider Doorway, has reported an annual loss of £5 million and net liabilities of £41.8 million, even as it completed two seven-figure acquisitions over the summer.

As reported by The Law Society Gazette, financial statements for the firm, which operates seven offices across England and Wales, show losses narrowing from £9 million in 2024 to £4.93 million in calendar 2025, with turnover up 11.5% to £24.6 million. As at 31 December, net liabilities stood at £41.8 million, up from £36.9 million, with amounts owed within one year of £88 million.

The LLP's immediate parent is Doorway Holdings Limited and its ultimate parent is Doorway 4 Law Limited, described in the accounts as a specialist equity provider to the legal sector. Both have committed funding to support the business. In 2018 the LLP entered a £25 million five-year loan agreement with Doorway 4 Law, extended during 2023 to £32 million with the maturity deferred and no set repayment date.

The firm has pursued cost savings in recent years, exiting certain private client markets in 2022 to concentrate on public and inquiry work. Its principal business is now personal injury, including clinical negligence, holiday sickness, industrial disease and road traffic accidents. Headcount fell 18% to 294 during the year, with 18 fee earners and 46 administrative staff cut, while investment in marketing continued in order to rebuild case stocks.

Acquisition activity has continued regardless. In June the group bought the trade and assets of Wirral-based Fife PI Limited from Forster Dean for £750,000 in cash plus a performance-related payment of £669,000. In July it acquired the personal injury practice of Manchester firm Clear Law Limited for £900,000 in cash, with a further contingent payment of £1.85 million agreed.

Commercial

Hedge Funds Increase Purchases of Los Angeles Wildfire Subrogation Claims as California Restrictions Stall

Hedge funds have stepped up acquisitions of legal claims tied to the 2025 Los Angeles wildfires after a legislative push to restrict the trades lost momentum, with pricing on individual claims ranging from as little as 3 cents on the dollar to roughly 60 cents.

As reported by HedgeCo.Net, citing Bloomberg, the transactions involve subrogation rights, which allow an insurer that has paid out on a policy to pursue a third party such as a utility for its losses. Rather than wait years for litigation to conclude, insurers can sell those rights to investors at a discount in exchange for immediate cash.

According to broker Cherokee Acquisition, claims arising from the Eaton fire are being acquired at 55 to 60 cents on the dollar, while Palisades claims, viewed as riskier because liability is harder to establish, are trading at 3 to 5 cents. Cherokee director Bradley Max said there is "plenty of appetite for buyers and sellers," that most hedge funds active in the market are targeting returns in the low-to-mid teens, and that transactions are typically funded within a couple of weeks. He said Cherokee recently acquired roughly $100 million of Palisades-related claims for less than 10 cents on the dollar.

California adopted a law in 2025 requiring insurers to offer utilities a right of first refusal before selling claims to investors, but it stopped short of banning hedge fund purchases outright. Max said the rule has had little effect on demand.

The fires caused an estimated $40 billion in insured losses. A bellwether jury trial in the Eaton fire litigation is scheduled for January 2027. The spread between Eaton and Palisades pricing illustrates how sharply investors are discounting liability risk, while the legislative impasse has removed, for now, the prospect of the opportunity being closed off entirely.

Commercial

High Court Rules Mariana Client Committee Had No Power to Switch Solicitors, Leaving PGMBM and Funder Gramercy in Place

The High Court has ruled that the claimant committee in the Mariana dam litigation had no authority to terminate its retainer with PGMBM, formerly Pogust Goodhead, or to instruct a rival firm in its place, resolving a control fight that had put the funded claim's management in doubt.

As reported by The Law Society Gazette, Mr Justice Waksman delivered an oral judgment finding that the committee could not terminate the collective conditional fee agreements or litigation management agreements covering roughly 420,000 claimants, and therefore could not appoint Bailey Glasser International to take over the next phase. "It is plain to me that Pogust Goodhead's construction is preferred," the judge said, adding that the committee "had no power to instruct BGI." He ordered £300,000 in costs on account within 14 days.

The claim arises from the 2015 collapse of the Fundão dam in Brazil's Mariana municipality. The High Court found in November 2025 that the collapse was foreseeable and that BHP was strictly liable, with a phase 2 trial on quantum listed for next year.

Waksman acknowledged the committee's criticisms, including the departure of the counsel team over a fees dispute, the instruction of Quinn Emanuel while PGMBM remained on the record, and concerns about the firm's funder, Gramercy. The court heard at an earlier two-day hearing that PGMBM estimated claimants would face around £2 billion in costs exposure if the contracts were terminated.

PGMBM chief executive Alicia Alinia called the ruling a "decisive victory," saying "our clients are not commodities to be transferred between law firms." Humphries Kerstetter, acting for the committee, said it would analyse the judgment before deciding its next steps. Permission to appeal was sought at the hearing, which continues on consequential matters.