Augusta Pool 1 UK Ltd v Williamson

Augusta Pool 1 UK Ltd (the applicant) appealed to the Court of Appeal of New South Wales against orders made by the primary judge approving a settlement in a representative proceeding. The dispute concerned the approval of a settlement that included a limitation on deductions from the settlement sum for the litigation funder’s commission and an "after the event" insurance premium, capping these deductions at 25% of the gross settlement sum.

The Court of Appeal was required to determine whether the primary judge had erred in imposing an onus on the litigation funder to adduce expert evidence regarding the reasonableness of the proposed deductions. Further, the court had to consider whether the primary judge had taken into account irrelevant factors when assessing the evidence presented in support of the settlement, particularly in the context of applications for common fund orders. The court also had to determine if the primary judge had made an error in finding that there was insufficient disclosure to group members at the time of the settlement, and whether insufficient weight had been given to the lack of objection from group members and the competitive process by which the litigation funding was arranged.

The Court of Appeal dismissed the appeal. The court reasoned that the primary judge had not impermissibly imposed an onus on the litigation funder, nor had they taken irrelevant factors into account. The primary judge's findings regarding insufficient disclosure and the weight to be accorded to the lack of objection and the competitive tendering process were also upheld. The court found no error in the primary judge's approach to approving the settlement with the specified limitation on deductions.

The appeal was dismissed with costs.