You now have the option of signing a Co-Funding Agreement with Omni Bridgeway & Burford Capital. You can do this by selecting the ‘Sign Agreement’ button within your Omni Portal. There are a number of reasons why Group Members may wish to consider signing a Co-Funding Agreement and Retainer and Costs Agreement.
First, the initial trial in a class action will usually only determine the Representative’s claim and the common issues. Issues specific to your individual claims, such as whether you suffered loss and the value of the loss, will not be determined in the initial trial. It may be that further steps will then need to be taken in order to pursue your individual damages. This could include a court hearing at which your individual damages are determined. By signing a Co-Funding Agreement, you will secure funding at the agreed commission rates that cover not only the initial trial in the class action, but also any additional steps that may be needed to advance your individual claims. You will also be protected from any adverse costs orders that may be made against you in taking these additional steps.
Second, as the claim has been filed on an ‘open’ basis, the Representative may ask the Court for a ‘common fund’ order. A common fund order is an order made by the Court requiring all Group Members to contribute to the costs of funding the proceeding on a fair basis, including those who have not signed a Co-Funding Agreement. If the Court is minded to make a common fund order in this case, the Court will set a rate (which may be different to the rate in the Funding Agreement) that will apply consistently to all Group Members. Under the Co-Funding Agreement, where the Court makes a common fund order and sets a rate which is different to the rate in the Co-Funding Agreement, the lower of the rate provided in the Co-Funding Agreement and the rate set by the Court will apply to members of the group who have signed a Co-Funding Agreement. In these circumstances, you will not be financially worse off for having signed a Co-Funding Agreement with Omni Bridgeway and Burford Capital.
If the Court does not make a common fund order, the Court may make a “funding equalisation order” in relation to the distribution of any settlement sum. The effect of a funding equalisation order is to equalise the recovery that funded and unfunded Group Members receive in the hand, taking into account the fact that funded Group Members will be required to pay a commission to Omni Bridgeway. As far as Omni Bridgeway are aware, a funding equalisation order has been made upon request in all previous ‘open’ class actions that have included a combination of funded and unfunded Group Members, including several cases that were funded by Omni Bridgeway. A funding equalisation order would mean that unfunded Group Members are left in essentially the same position as if they had signed a Funding Agreement.