Privileged & Confidential

 

 

Dear

 

Engagement Letter - Recall of affected motor vehicle fitted with a Takata manufactured airbag in Australia

 

We are pleased to confirm your engagement of Quinn Emanuel Urquhart & Sullivan (Quinn Emanuel) to represent you in relation to representative proceedings arising out of the recall of affected vehicles  fitted with a Takata manufactured airbag (the “Engagement”).

 

1.0       Summary


 

We understand that you have entered, or will enter, into a separate agreement (the “Litigation Funding Agreement”) with Regency Funding Pty Limited (the “Funder”) with respect to the funding of the representative proceedings and Engagement (class actions) (the “Litigation”).

Please refer to the website https://www.productsafety.gov.au/news/takata-airbag-recalls-affecting-australian-consumers to confirm whether your car is one of the vehicles affected.

 

Our immediate tasks will be to:

 

1.              investigate and advise you in respect of your rights and interests in connection with the Litigation (the “Claims”);

2.              draft and prepare the relevant pleadings and legal documents to pursue the Claims and to commence the Litigation;

3.              conduct the Litigation;

4.              protect your rights and act in your best interests in relation to the Claims and the resolution of the Litigation; and

5.              assist with any settlement negotiations concerning the Claims and the Litigation (including any alternative dispute resolution process).

 

We estimate that our fees and disbursements (the “Legal Costs”) for these tasks in acting for you and for all other people with like Claims against the Respondents who enter into a Litigation Funding Agreement and by whom we are engaged (together the “Claimants”) will not exceed $5,500,000.00 (plus GST). This figure includes our professional fees, barrister fees, ancillary charges and disbursements.

 

The above figure is an estimate, and should be viewed as guidance only. It is based on our present understanding of the present circumstances.

 

If the scope of the work required by the Litigation and the Claims changes, or if there is a significant change to anything previously disclosed to you, we will update you accordingly. We confirm that the major variables that will affect the calculation of these Legal Costs include, amongst other things,:

(a)            how far the matter must go before it is concluded;

(b)            the amount of evidence required to be gathered;

(c)            the tactics adopted by the Respondents;

(d)            the number of witnesses required to provide reports, information and evidence;

(e)            the length of the trial in the Litigation, if this matter is not concluded earlier; and

(f)             unexpected problems, the co-operation of other persons and administrative and other delays beyond our control.

 

We may perform work pursuant to this Retainer through agents or employees. This work will be carried out by legal practitioners as may be nominated by us from time to time.

 

The lawyers and support staff we initially propose to principally use on this matter, as well as their contact details and our charge out rates (excluding GST), are listed below:

 

Lawyer

Position

Contact Details

 

Charge Out Rate (A$)

 Damian Scattini

 Partner

 (02) 9146 3888

damianscattini@quinnemanuel.com

 $820.00 p/h

 Meagan Bertolatti

 Associate

 (02) 9146 3548

meaganbertolatti@quinnemanuel.com

 $435.00 p/h

Daniel Lunniss

Paralegal

(02) 9146 3607

damianscattini@quinnemanuel.com

$295.00 p/h

 

Without any duplication or additional cost, Damian Scattini and Meagan Bertolatti will both keep abreast of this matter and you should feel free to contact either of us at any time about the work provided for under this retainer (the “Retainer”) or the progress of your matter. We will provide you with updates about the work provided for under this Retainer or the progress of your matter on the same terms as are detailed in this Retainer and the Litigation Funding Agreement.

 

2.0      Details of the Engagement 


 

The purpose of this letter is to set out and confirm the scope of legal services and the terms of our Engagement in relation to the Litigation. These terms will constitute a costs agreement for the purposes of the Legal Profession Uniform Law (NSW) and all associated regulations and rules (the “Uniform Law”).

 

Scope of Engagement & Relationship between this Retainer & the Litigation Funding Agreement

 

As mentioned above, we are to represent you in relation to the Engagement and your Claims in respect of the Litigation.

 

We confirm that we have entered into a separate agreement with the Funder, which is annexed at Annexure B (the “Instruction Protocol”). The Instruction Protocol provides for how we are given directions by the Funder, and how we are to carry out those directions, in connection with the Litigation and the Claims of all Claimants (including your Claims).

 

This Retainer must be read in conjunction with the Litigation Funding Agreement and the Instruction Protocol, at all times. In particular, clause 11.5 sets out our duty to you in the event of a perceived or potential conflict with the interests of the funder. We encourage you to read that clause carefully.

 

Pursuant to the Litigation Funding Agreement, the Funder agrees to pay our Legal Costs for which you are liable under this Retainer, on the terms outlined in the Litigation Funding Agreement.  We are authorised by this Retainer to make day-to-day decisions in relation to the conduct of the Litigation.

 

You acknowledge and accept that we may have been, or will be, retained by other Claimants to pursue Claims on their behalf in the Litigation. In conducting the Litigation pursuant to the terms of this Engagement, we will do work for the common benefit of all Claimants who retain us in relation to their Claims (the "Common Work"), as well as work in connection with your specific Claim (the “Individual Work”). You will be charged for both the Common Work and the Individual Work.

 

You acknowledge that, prior to you signing this Retainer, we may have already undertaken work in relation to the Claims, and that this work was to your benefit and the common benefit of all Claimants, We confirm that the cost of performing this work is included in the estimate of Legal Costs contained in this Retainer. Under this Retainer, you authorise us to charge for and recover any amount of Legal Costs incurred, or which may be incurred, in respect of work performed prior to, or after, you entering into this Retainer.

 

We and the Funder have agreed to conduct the Litigation in accordance with the Litigation Funding Agreement and the Instruction Protocol.

 

We note that this Retainer must be read in conjunction with the Litigation Funding Agreement and the Instruction Protocol.

 

Legal Advice & Negotiation about this Retainer

 

This Retainer is a legally binding agreement. You should not sign it unless you have understood everything in it.  We also advise of your right to seek independent legal advice in relation to this Retainer and the Litigation Funding Agreement, prior to signing, and otherwise agreeing to the terms of this Retainer.

 

Legal Costs & Payment

 

Our fees are based on the amount of time we spend on this matter. We will also pass on any disbursements that we incur on this matter. Together, these fees and disbursements are our Legal Costs for this matter.

 

Our Legal Costs will be paid by the Funder, in accordance with the Litigation Funding Agreement and the Instruction Protocol, in the amounts calculated in accordance with the Instruction Protocol. By signing this Retainer, you expressly authorise us and the Funder to deal with the payment of Legal Costs incurred by us in the course of the Litigation in accordance with the provisions of the Litigation Funding Agreement and the Instruction Protocol.

 

This includes circumstances where an amount of any costs order in your favour, even if recovered, is considerably less than the total amount of the Legal Costs payable under the terms of this Retainer and, in those circumstances, you authorise us to recover the amount of the difference from any judgment for damages or settlement.

 

As you will appreciate, forecasting Legal Costs in litigation is inherently difficult due to the large number of factors beyond our control that can impact on costs. We will provide updated fee estimates in relation to the Engagement as the matter progresses.  As noted above, a detailed explanation of our Legal Costs, and your rights in relation to those Legal Costs, are set out in Annexure A. Should there be any substantial changes to anything contained in our Terms of Engagement, you will be informed as soon as is reasonably practicable. 

 

Your liability for Legal Costs will be funded by the Funder, or carried by us on a No Win-No Fee basis, and recovered by us and/or the Funder (as applicable) out of any judgment for damages or settlement received in the event of a successful outcome.  We reiterate, as set out in the Litigation Funding Agreement, that regardless of the outcome of the Litigation or your Claim, as long as you comply with your obligations under this Retainer and the Litigation Funding Agreement you will not be liable for any Legal Costs out of your own pocket.

 

Where it is necessary by way of court order, application or otherwise for there to be an assessment, taxation or costing in respect of any costs order (adverse or in your favour) in relation to the Litigation and/or your Claims, the fees and disbursements for that assessment, taxation or costing will be charged as a disbursement to be paid by the Funder. This does not apply if the relevant cost order arises from any dispute between you and either us or the Funder.

 

Our Point of Contact 

 

Pursuant to the terms of the Litigation Funding Agreement, we will also communicate directly with the Funder in relation to this matter.  We will, of course, also provide you with regular updates in respect of the Litigation.

 

Responsibilities of each Claimant

 

In order to represent you effectively, it is important that you provide us with complete and accurate information regarding the subject matter of this Retainer, and that you keep us informed on a timely basis of all relevant developments. In addition, it is essential that you provide us with timely assistance and cooperation in connection with the work provided for by this Retainer.

 

It is important that all documents that are potentially relevant to the Litigation (both electronic and hard copy) are retained and, in particular, are not deleted or otherwise disposed of. A duty to preserve potentially relevant information is triggered when Litigation is reasonably anticipated or commenced.  We will of course discuss your obligations with you further, but it you have any questions in this regard now, please let us know.

 

Settlement

 

If Litigation has been commenced in the court, settlement of your Claim cannot be concluded until court approval has been obtained. In that context, the court will assess whether the proposed settlement is fair and reasonable to the Claimants in all of the circumstances.

 

You agree that, in the absence of manifest error, our calculation of the value of the Claimants’ Claims for these purposes will be final and binding on each Claimant (including you).

 

Receipt & Application of Proceeds of the Claim

 

If the Litigation is successful, either through a judgment for damages or a settlement, moneys may be received from the Respondents, or any other party to the Litigation against whom any adverse costs order is made in your favour. Those moneys will be the proceeds of the Claim (the “Proceeds of the Claim”).

Any dispute regarding the application of any Proceeds of the Claim between you, us and/or the Funder, other than an objection to a proposed settlement filed with the Court, shall be resolved by the mechanisms set out in the Litigation Funding Agreement or a court approved settlement distribution scheme.

 

Termination

 

If you breach any of your obligations under this Retainer or if we become satisfied that:

 

(a)            you have lost confidence in us;

(b)            we believe, on reasonable grounds, that we have a conflict of interest;

(c)            we believe that the Litigation and/or your Claims do not enjoy reasonable prospects of success;

(d)            the Funder is, or is about to become, insolvent;

(e)            the Funder is no longer funding the Litigation or the Claims; or

(f)             we are notified by the Funder that it has given notice of termination to you under the Litigation Funding Agreement.

 

We are entitled to terminate this Retainer, having provided you first with reasonable written notice of our intention to do so and our reasons for so doing. In the event of such termination, we will remain entitled to be paid for any work carried out on your behalf up to that date.

 

Acknowledgement of Terms 

 

This Retainer is an offer to enter into a costs agreement, which you can accept in writing or by continuing to instruct us.   We have enclosed an executed copy of this letter. If the Retainer accurately reflects our agreement with you, please confirm that by signing and returning a copy to us. Should you continue to instruct us after receiving this Retainer, that conduct will constitute acceptance of all terms set out in this Engagement letter.

 

We are not bound by this Retainer until both the following have occurred:

 

(a)            you return a signed Retainer to us or continue to instruct us after receiving this Retainer; and

(b)            you sign a Litigation Funding Agreement with the Funder.

 

Please call us to discuss any questions you may have regarding this Retainer. We also encourage you to consult with an independent lawyer about any of the provisions in this Engagement letter.

 

We very much look forward to working with you on this Engagement.

 

Yours sincerely,

DJS sig

 

Damian Scattini, Partner

+61 2 9146 3500
Damianscattini@quinnemanuel.com

 

STATEMENT TO BE SIGNED BY CLIENT:

 

I have read this letter and I understand and agree to its contents.

 

Name:                                                                            

 

Vehicle Make/Model:                                                        

 

Date:                                                                              

 

Signature:                                                                       

 


ANNEXURE A

TERMS OF ENGAGEMENT

 

PART A – Costs and Billing

______________________________________________

 

1.0 Billing Arrangements

 

1.1.   The legal costs, legal fees, costs orders and disbursements for and relating to work done pursuant to this Retainer, are, subject to the terms of this Retainer and the Litigation Funding Agreement, to be paid by the Funder. Given this, to the extent that they are applicable in these circumstances, your and our rights and obligations in respect of the Retainer, include, in addition to those outlined in the Engagement letter to which these terms are annexed, these terms.

 

1.2.   Our usual policy is to issue a tax invoice on a monthly basis but we may issue tax invoices on a more frequent basis depending on the nature of the work.  All tax invoices are due and payable 30 days from the date of the tax invoice.  You consent to us sending our tax invoices to you electronically at your usual email address or mobile phone number or specified by you.

 

1.3.   You may accept this Retainer by:

 

(a)  signing and returning this document to us; or

(b)  continuing to instruct us.

 

Upon acceptance, you agree to pay for our services on these terms.

 

2.0 Ancillary Charges

 

2.1. We will charge separately for certain ancillary services we provide, such as photocopying, scanning, paralegal overtime and word processing.

 

2.2. We pass along out-of-pocket costs and charges that we incur on our clients' behalf.  These typically include courier charges, deposition videography, transcript charges and administrative charges.

 

2.3. Other charges for substantial document reproduction and document imaging will be billed to you based on market prices. We will obtain and provide quotes for these charges.

 

3.0 Disbursements

 

3.1. Additionally, we charge for computerised legal research at market rates (Westlaw or Lexis fees), travel costs, meal charges and parking charges, filing fees, telephone toll charges, fees for experts and other consultants retained on your behalf, and similar charges.

 

3.2. In some cases, particularly if the amount is large, we may forward an invoice from an outside vendor or service directly to you for payment, which will also be due and payable upon receipt.  Failure to pay such invoice upon request will be grounds for us to withdraw from our representation.

 

4.0 Recording Time

 

4.1. Our charges are structured in six minute units. For example, the time charges for an attendance of up to six minutes will be one unit and the time charged for an attendance between six and 12 minutes will be two units.

 

5.0 Goods & Services Tax (GST)

 

5.1.     Where applicable, GST is payable on our professional fees and expenses and will clearly be shown on our tax invoices. By accepting the Engagement letter, you agree to pay us an amount equivalent to the GST imposed on these charges.

 

6.0 Interest

 

6.1. Interest at the maximum rate prescribed in Rule 75 of the Legal Profession Uniform General Rules 2015 (the “Uniform General Rules”) (being the Cash Rate Target set by the Reserve Bank of Australia plus 2%) will be charged on any amounts unpaid after the expiry of 30 days after a tax invoice is given to you. Our tax invoices will specify the interest rate to be charged.

 

6.2. The Uniform General Rules provide that we cannot take action for recovery of legal costs until 30 days after a tax invoice (which complies with the Act) has been delivered to you.

 

7.0 Engaging Another Law Practice 

 

7.1. We may, with your approval, engage another law practice or expert counsel (for example, a barrister) on your behalf.  In that event we will inform you, as soon as reasonably practicable, of the prescribed information concerning the costs of that law practice. You may, if appropriate, be asked to enter into a costs agreement with them.

 

8.0 Changes to Rates  

 

8.1. We note that the hourly rates set out in the body of the Engagement letter are subject to adjustment annually. We will, of course, notify you if these are changed, 30 days before they become effective. In lengthy matters this may impact upon our costs estimate (which may be revised accordingly). 

 

9.0 Variables

 

9.1. Some of the variables which may impact upon the costs estimate provided in the main Engagement letter include the following:

 

(a)   actions taken by third parties in relation to the Engagement, for example in any judicial or administrative proceedings;

(b)   rulings by a court or tribunal in respect of any proceedings relating to the Engagement;

(c)   the number and duration of telephone calls or other communications;

(d)   your prompt and efficient response to requests for information or instructions;

(e)   whether your instructions are varied;

(f)    whether documents have to be revised in light of varied instructions;

(g)   the lawyer or other persons with whom we deal and the level of co-operation of the lawyer’s clients and other persons involved;

(h)   changes in the law; and

(i)    the complexity or uncertainty concerning legal issues affecting your matter.

 

10.0 Your Rights in relation to Billing and Costs

 

10.1. It is your right to:

 

(a)  negotiate a costs agreement with us;

(b)  negotiate the method of billing (eg. task based or time based);

(c)  receive a lump sum bill in respect of legal services provided;

(d)  request and receive an itemised bill within 30 days after a lump sum bill or partially itemised bill is payable;

(e)  seek the assistance of the designated local regulatory authority (the NSW Commissioner) in the event of a dispute about legal costs;

(f)   be notified as soon as is reasonably practicable of any substantial change to any matter affecting costs;

(g)  request in writing, and be provided with, a written report of the progress of any matter in which you retain us or a written report of the legal costs incurred by you to date;

(h)  accept or reject any offer we make for an interstate costs law to apply to your matter; and

(i)   notify us that you require an interstate costs law to apply to your matter.

 

10.2. We are entitled to charge you a reasonable amount for the provision of a progress report on your matter, but may not charge for the provision of a written report on the legal costs incurred by you.

 

10.3. Nothing in these terms and conditions affects your rights under the Australian Consumer Law.

 

11.0 Your Right to Dispute Costs

 

11.1. If you have a dispute in relation to any aspect of our legal costs you have the following avenues of redress:

 

(a)  in the first instance, we encourage you to discuss your concerns with us so that any issue can be identified and we can have the opportunity of resolving the matter promptly and without it adversely impacting on our business relationship; or

(b)  you may apply to the Manager, Costs Assessment of the Supreme Court of NSW for an assessment of our costs. This application must be made within 12 months after the bill was provided or request for payment made or after the costs were paid.

 

12.0 Costs Recoverable on Litigation Outcome

 

12.1. We are required by the Act to provide you with an estimate of the range of costs that may be recovered by you if you are successful in any litigation related to the Engagement and the range of costs that you may be ordered to pay if you are unsuccessful in the litigation. It should be appreciated that an order by a court for the payment of costs in your favour will not necessarily cover the whole of your legal costs.

 

12.2. Based on our instructions, we estimate that: 

 

(a)   approximately 40-60% of costs are recoverable by you if you win the litigation, or

(b)   approximately 40-60% of costs are payable by you to the opposing side if you lose the litigation. 

12.3. Our figures are estimates and should be viewed as guidance only.

12.4. Please note:

(a)    all courts have discretion in respect of awarding costs. Costs are normally awarded in favour of the successful party in the proceedings. In some courts (such as the Small Claims Division of the Local Court) and for claims less than $20,000 in the Local Court, the amount of costs you can recover are very limited;

(b)    the amount of costs that the court may award you (if successful) or order you to pay (if unsuccessful) will also be influenced by whether or not an offer of compromise or a Calderbank settlement offer has been made in the proceedings. If such a settlement offer is made and not accepted, and at the hearing of the matter the maker of the offer achieves an outcome as favourable or more favourable than that set out in the offer, then (whilst always having a discretion) the court may (in the case of a Calderbank offer) or is likely to (in the case of an offer of compromise) award costs on an indemnity basis from the date the offer was made against the party who did not accept the offer;

(c)    the estimated ranges of costs are prepared bearing in mind that only a certain percentage of your total legal costs are recoverable or may be payable. Simply put, even if you win and obtain an order that the other party pays your costs, you will still be out of pocket with respect to legal costs charged by us on the solicitor/client basis;

(d)    if you win at first instance, you may still face the prospect of meeting the costs of defending your verdict, if the other side appeals. If you lose at first instance, you may be advised to appeal;

(e)    any cost estimates provided with respect to an appeal are very uncertain as the costs associated with an appeal will depend upon many factors including initial trial length, findings by the court of first instance, nature of appeal to be run and which party is appealing. The possible costs associated with winning or losing on appeal are not dealt with in this document, but will be advised to you should an appeal follow the result at first instance;

(f)     even if you are successful in proceedings and have a costs order in your favour, it may still be necessary to seek to enforce such costs order through the court system. This can be time consuming and costly. The possible costs associated with such potential enforcement proceedings are not dealt with in this document, but will be advised to you should the relevant circumstances arise;

(g)    courts and costs assessors take into account whether a successful party is entitled to an input tax credit in respect of legal costs already paid, when assessing costs recoverable by the successful party; and

(h)    where a Court orders a payment of costs or lawyers' fees, and that payment is made to us, you authorise us to credit it against any amounts owed to us. Please note you will still be obligated to pay for any unpaid portion of our bills as they become due.

 

 

 

13.0 Our Lien

 

13.1. Without affecting any other lien to which we are otherwise entitled at law over funds, papers and other property of yours in our possession, you agree that we shall be entitled to retain by way of lien any funds, property or papers of yours, which are from time to time in our possession or control, until all costs, disbursements, interest and other moneys due to us have been paid, and that our lien will continue notwithstanding that we cease to act for you.

 

PART B – Our Engagement

______________________________________________

 

14.0 Legal Services Only  

 

14.1. The advice provided in relation to the Engagement is of a legal nature only. You agree that you will not look to or rely upon us for any investment, accounting, financial or other non-legal advice.

 

15.0 Changes to Our Engagement

 

15.1. Any changes to the scope of the Engagement must be agreed in writing, and may require an additional Engagement letter.

 

16.0 Conflicts

 

16.1. We will take all reasonable care in the performance of the Engagement to avoid any conflicts of interest. As soon as we are aware of any circumstance in which we perceive a conflict arising, we will promptly inform you and take such action as may be reasonable and necessary to protect your interest

 

16.2 In we notify you and the Funder that we believe that circumstances have arisen such that we may be in a position of conflict with respect to any obligations we owe to you and any obligations we may owe to the Funder, then you and the Funder agree that, in order to resolve that conflict, we may seek independent advice from counsel, the costs of which will be treated as part of the legal costs to be paid by the Funder.

 

17.0 Future Conflicts

 

17.1. Our firm has many lawyers and numerous offices. You consent and understand that, provided it does not give rise to a legal conflict of interest, lawyers in our other offices may be representing other clients in unrelated matters against you, and that we may represent other clients in the future against you. A legal conflict of interest means, for example, where there is a real possibility that your confidential information which we possess could be used to your detriment.

 

18.0 No Guarantee of Result

 

18.1. In providing legal advice to you, we may from time to time express opinions or beliefs regarding the likely effectiveness of various courses of action or about results that may be anticipated.  

 

18.2.   You understand that any such statements are opinions and beliefs only and are not promises or guarantees. We cannot and do not guarantee any particular course or outcome of the Engagement.

 

 

19.0 Privacy  

 

19.1. We will collect personal information from you in the course of providing our legal services.   We may also obtain personal information from third party searches, other investigations and, sometimes, from adverse parties.  

 

19.2. We are required to collect the full name and address of our clients by Rule 93 of the Uniform General Rules.  Accurate name and address information must also be collected in order to comply with the trust account record keeping requirements of Rule 47 of the Uniform General Rules and to comply with our duty to the courts.

 

19.3. We are required and committed to protecting your personal information in accordance with our obligations under the Privacy Act 1988 (Cth) and the National Privacy Principles. 

 

19.4. Personal information about you, provided by you and other sources, is protected under the Privacy Amendment (Private Sector) Act 2000 (Cth). Disclosure of such information may be compelled by law (eg. under the Social Security Act 1991 (Cth)). 

 

19.5. You also authorise us to disclose such information where necessary to others in furtherance of your claim/matter. 

 

20.0 Protection of Confidential Information  

 

20.1. We will protect your confidential information, and will not disclose such information unless you authorise us to or unless we are required by law. You agree that we may, on a confidential basis, provide your information to third parties where we consider it appropriate for the proper conduct of your matter.

 

20.2 You authorise us to provide all Claimants and the Funder with confidential updates of the progress of the Litigation and in doing so, you do not intend to waive any privilege (between us and you) which may attach to such communications.

 

21.0 Retention of Your Documents  

 

21.1. Once the Engagement has concluded, and subject to payment of all outstanding fees and disbursements, you may request the return of files relating to the work to be performed pursuant to the Retainer. We may charge you for the reasonable costs of retrieval, assembly, copying and transfer of all files or materials in any format.  

 

21.2. It is our practice to retain the permanent records of the matter, in accordance with our records retention policy, for a period of not less than 7 years after the Engagement has ended. 

 

21.3. If you do not request the files in writing before the end of our retention period, upon the expiration of that period we will have no further obligation to retain the files and may, at our discretion, destroy the files without further notice to you.  The authority does not relate to any documents which are deposited in safe custody which will, subject to agreement, be retained on your behalf indefinitely.  We are entitled to retain your documents while there is money owing to us for our costs.

 

 

22.0 Termination

 

22.1. Above all, our relationship with you must be based on trust, confidence and clear understanding. Accordingly, but subject to the Litigation Funding Agreement, you may terminate this representation at any time, with or without cause.  Subject to the rules of professional responsibility, we also reserve the right to withdraw with reasonable written notice if, among other things:

(b)       you refuse or fail to cooperate with us or to follow our advice on a material matter; or

(c)       any fact or circumstance arises that, in our view, renders our continuing representation unlawful or unethical. 

 

22.2. Any termination of our representation of you would be subject to such approval as may be required from the Funder, and any court in which we are appearing on your behalf.  In the event of termination by either of us, fees and costs for work performed prior to termination will still be payable to the extent permitted by law.

 

23.0 Applicable Law  

 

23.1. The laws in force in New South Wales govern this Agreement.

 

24.0 Severability

 

24.1. Should any part of this Retainer be rendered or declared invalid by a court, the part of the Retainer that has been declared invalid shall be severed, and should not invalidate the remaining Retainer. The remaining clauses shall remain in full force and effect.

ANNEXURE B

INSTRUCTION PROTOCOL

 

RECITALS

 

A.      The Funder has entered into, or proposes to enter into, the Litigation Funding Agreements.

 

B.      The Litigation Funding Agreements are all in the same or substantially the same terms.

 

C.      The Lawyers are aware of the terms of the Litigation Funding Agreements, and have agreed to act consistently with, and in accordance with, the terms of the Litigation Funding Agreements, and this Instruction Protocol

 

OPERATIVE PROVISIONS

 

1.        Definitions

 

1.1.     Unless the contrary intention appears:

 

Engagement Letters means the engagement letters between the Lawyers and the Funded Persons in relation to the Claims.

 

Funded Persons means all persons who have entered into, or who enter into, a Litigation Funding Agreement in relation to their Claims.

 

Litigation Funding Agreements means agreements of that name with the Funder in relation to the [class action details].

 

1.2.     Unless the contrary intention appears, words defined in the Litigation Funding Agreements have the same meaning when used in this Instruction Protocol.

 

2.        The Funding Agreements

 

2.1.     The Lawyers must enter into an Engagement Letter with each Funded Person and shall disclose to each Funded Person the sources of all fees or other income they may receive in relation to the Claims.

 

2.2.     The Lawyers must

 

(a)      act consistently with the terms of the Litigation Funding Agreements and the Engagement Letters (including complying with all instructions set out in, or provided to the Lawyers pursuant to, the Litigation Funding Agreements and the Engagement Letters); and

 

(b)      do all things which the Litigation Funding Agreements and that Engagement Letters contemplate that the Lawyers will do.

 

2.3.     The Lawyers agree that, if there is any inconsistency between any of the Litigation Funding Agreements, the Engagement Letters and/or this Instruction Protocol, the terms of the Litigation Funding Agreements will prevail, followed next in priority by this Instruction Protocol.

 

3.       Initial Information to be provided by the Lawyers

 

3.1.     The Lawyers must inform the Funder in writing of, and get the Funder’s agreement to:

 

(a)      the names and hourly rates (inclusive of GST) of the lawyers who it is proposed will provide the legal work in respect of the Claims;

 

(b)      the names and hourly and daily rates of the barristers who it is proposed will be retained (inclusive of GST); and

 

(c)      the Lawyers' all-inclusive estimate of the fees and disbursements to run the Proceedings and prosecute the Claims up to the conclusion of a trial in the proposed Proceedings (separately identifying the estimated fees of the Lawyers, the barristers and the experts, if any)

 

3.2.     The Lawyers must use their best endeavours to ensure that the total actual fees and disbursements to run the Proceedings and prosecute the Claims do not exceed that estimate. If at any time the Lawyers form a view that the estimate is no longer accurate or complete, they must advise the Funder in writing, setting out why they have come to that view, and identify their revised best estimate of the fees and disbursements to run the Proceedings and prosecute the Claims up to the conclusion of a trial in the proposed Proceedings. The Funder is under no obligation to accept the revised estimate.

 

4.        Reporting by the Lawyers

 

4.1.     The Lawyers must keep the Funder fully informed of all matters concerning the Claims and the Proceedings, including any Alternative Dispute Resolution Process and Settlement discussions.

 

4.2.     The Lawyers must ensure that the Funder is given all necessary information and advice in order for the Funder to provide informed instructions in relation to the Proceedings and the Claims.

 

4.3.     The Lawyers must inform the Funder, in writing, and as soon as they become aware of any of the following information:

 

(a)      that the Lawyers or any director, partner or senior employee (or any spouse or child of any director, partner or senior employee) of the Lawyers beneficially owns at least 1% of the Funder’s issued share capital; and

(b)      that any barrister or expert witness retained or briefed by the Lawyers in relation to the Proceedings (or any spouse or child of any such barrister or witness) beneficially owns at least 1% of the Funder’s issued share capital;

 

and the Lawyers agree:

 

(c)       to make all reasonable enquiries, at the commencement of this Instruction Protocol, or when initially retaining all barristers and expert witnesses, in order to determine whether Clause 4.3(a) or 4.3(b) apply;

 

(d)       to require, for the duration of the Proceedings, all directors, partners, senior employees, barristers and expert witnesses referred to Clause 4.3(a) or 4.3(b) to immediately inform the director of the Lawyers with responsibility for the Claims and the Proceedings of any change in the information referred to in Clause 4.3(a) or 4.3(b) which has been previously disclosed to the Funder, and

 

(c)       that the director of the Lawyers with responsibility for the Claims and the Proceedings will immediately inform the Funder of any information received pursuant to Clause 4.3(d).

 

4.4.     The Lawyers must inform the Funder, in writing, and as soon as they become aware of any other information that may reasonably be considered to establish a pre-existing relationship with the Funder.

 

4.5.     The Lawyers must inform the Funder, in writing, and as soon as they become aware of any information which has or may have a material impact on the Claims, the Proceedings or the potential for any Judgment or Settlement to be recovered,

 

4.6.     The Lawyers must inform the Funder and the Funded Persons, in writing, and as soon as they become aware of any significant developments in the Proceedings or with respect to the Claims, by means of update reports sent by email or post to each Funded Person and, unless otherwise agreed with the Funder, the Lawyers must provide a quarterly report to the Funder and the Funded Persons, in writing, at the end of March, June, September and December each year, which:

 

(a)      identifies any change to the previous quarterly report and any significant developments;

 

(b)      reviews the issues relevant to liability and quantum with respect to the Claims; and

 

(c)      provides advice in respect of any proposed changes to the Claims or the Proceedings, the prospects of success of the Claims or the Proceedings, and any proposed changes to the estimate of the fees and disbursements to run the Proceedings and prosecute the Claims up to the conclusion of a trial in the proposed Proceedings (without derogating from the Lawyers; continuing obligation under Clause 3.2).

 

5.        The Lawyers’ Charges

 

5.1.     The Lawyers must charge for their legal work performed by reference to the time reasonably and properly spent at the hourly rates notified to the Funder, subject to an annual revision in those rates which is acceptable to the Funder. Detailed time records must be kept by the Lawyers.

5.2.     No fees will be charged by the Lawyers for any fee earners other than those notified to the Funder pursuant to Clause 3.1(a), without the prior written consent of the Funder, unless the assistance of such other fee earners is urgently and reasonably required.

5.3.     No fees will be charged by any barristers other than those notified to the Funder pursuant to Clause 3.1(b), without the prior written consent of the Funder, unless the assistance of such other barristers is urgently and reasonably required.

5.4.     The Lawyers must only seek reimbursement from the Funder for disbursements (such as photocopying, scanning and telephone costs) reasonably incurred by the Lawyers in respect of the Proceedings and the Claims.

 

6.      The Lawyers’ Invoices

6.1.     The Lawyers must render monthly invoices to the Funder (emailed to [insert email]), by whatever date the Lawyers usually render monthly invoices. The monthly invoices must be accompanied by:

 

(a)      the details contemplated by Clause 6.3;

 

(b)      a summary of the time spent, and total cost (in a single dollar figure), of each relevant event in the Proceedings, and

 

(c)      invoices from barristers, expert witnesses and other disbursements ($500 or more).

 

6.2.     Subject to the Litigation Funding Agreement, and this Instruction Protocol, the Funder must pay:

 

(a)      all of the reasonable legal fees and disbursements of the Lawyers incurred consistent with the approved estimate up to the termination of the Litigation Funding Agreements, for the sole purpose of preparing for, prosecuting and resolving the Claims and the Proceedings; and

 

(b)      all barristers’ fees, any other fees of expert witnesses approved by the Funder and any other reasonable disbursements as agreed with the Funder up to the termination of the Litigation Funding Agreements, for the sole purpose of preparing for, prosecuting and resolving the Claims and the Proceedings.

 

6.3.     The Lawyers must include in each invoice for each recorded time entry

 

(a)      the date on which the time was spent;

 

(b)      a description of the work done in respect of which the time was spent;

 

(c)      which solicitor or paralegal spent the time;

 

(d)      the time spent in six minute units; and

 

(e)      the cost of the work done in respect of that entry.

 

7.      Payment of the Lawyers’ Invoices

 

7.1.     If invoices from the Lawyers comply with this Clause 6, the Funder must pay them within 30 days from the end of the month in which the Lawyers' invoice is received by the Funder.

 

7.2.     If invoices from the Lawyers comply with this Clause 6, on Judgment or Settlement, the Lawyers shall be entitled to payment out of Proceeds of the Claim of any fees or disbursements which may be outstanding, in accordance with the Litigation Funding Agreement.

 

8.        Priorities, Lien & Insurance

 

8.1.     The Lawyers agree not to seek payment of any amounts outstanding to them in excess of the amount for which the Funder is liable under this Instruction Protocol

 

8.2.     The Lawyers are not entitled to claim a lien in respect of documents in their possession relevant to the Claims or the Proceedings if there are no fees or disbursements payable pursuant to Clause 6.

 

8.3.     The Lawyers must maintain professional indemnity insurance of at least A$[10] million for the duration of the Engagement plus three years. The Lawyers must provide evidence of that insurance to the Funder on the Funder's request.

 

9.        Termination of this Instruction Protocol

 

9.1.     The Lawyers may terminate this Instruction Protocol on seven days' written notice to the Funder in the following circumstances:

 

(a)      if the Funder fails to pay any costs in accordance with this Instruction Protocol after the Funder has been given 30 days' written notice to do so;

 

(b)      if the Funded Persons are no longer classified as a “class” for the purposes of conducting a class action (representative proceeding);

 

(c)      if the Litigation Funding Agreements are terminated prior to a Judgment or Settlement being obtained;

 

(d)      if the Funder becomes insolvent; or

 

(e)      by agreement with the Funder.

 

9.2.    The Funder may terminate these Terms:

 

(a)      if the Lawyers are in breach of this Instruction Protocol after the Lawyers have been given 14 days’ written notice of the breach with a request to remedy the breach within 14 days;

 

(b)      if the Funded Persons are no longer classified as a “class” for the purposes of conducting a class action (representative proceeding);

 

(c)      if the Litigation Funding Agreements are terminated prior to a Judgment or Settlement being obtained;

 

(d)      if the Lawyers becomes insolvent;

 

(e)      by agreement with the Funder; or

 

(f)       on 7 days' written notice to the Lawyers in the event of professional misconduct or negligence by the Lawyers that has caused or is reasonably likely to cause material loss to a Funded Person or to the Funder.

 

10.      Miscellaneous

 

10.1. The Lawyers agree to keep the contents of the Litigation Funding Agreements, the Retainer, this Instruction Protocol and any documents produced by the Funder to which the Lawyers have access confidential and not to use them for any purpose other than the Proceedings and the Claims unless agreed in writing by the Funder or under compulsion of law. This Clause 10.1 survives termination.

 

10.2.   The Funder’s address for service is as set out in the Litigation Funding Agreements. The Lawyers' address for service is set out in the Retainer. An address for service may be changed by written notice.

 

10.3.   This Instruction Protocol may only be varied in writing signed by the Lawyers and the Funder.

 

10.4.   This Instruction Protocol is to be construed in accordance with, and is governed by, the laws of New South Wales.