ASIC grants temporary relief from certain dollar disclosures in PDSs for litigation funding schemes

ASIC has granted responsible entities of registered litigation funding schemes temporary relief from the requirement to disclose certain sensitive information in dollar terms in the scheme’s Product Disclosure Statement (PDS).

The relief only exempts dollar disclosure of:

  • the funding budget;
  • legal costs budget;
  • adverse costs insurance premiums;
  • estimated funding;
  • estimated legal costs; and
  • estimated claim proceeds.

This temporary relief is only available in circumstances where this financial information has been separately disclosed in writing or electronically to all known members of the litigation funding scheme. Any material changes to the information must also be notified to known scheme members.

ASIC granted the relief because public disclosure of this information is strategically sensitive in the context of litigation and, in the unique context of litigation funding, may not be in the interests of scheme members.

The relief is consistent with the current practice of Australian courts in permitting the non-disclosure of such information to opposing parties in class actions, given the information could provide a tactical advantage to opposing parties.

To implement this temporary relief, ASIC has made ASIC Corporations (Amendment) Instrument 2021/292 which amends ASIC Corporations (Disclosure in Dollars) Instrument 2016/767 (Dollar Disclosure Instrument). The relief commenced on 28 April 2021 and operates for a period of 12 months.

The temporary relief has been provided ahead of a public consultation about the continuation of the relief. ASIC expects to conduct the public consultation later this year.

Background

From 22 August 2020, operators of litigation funding schemes generally need to hold an Australian financial services licence, and litigation funding schemes will generally be subject to the managed investment scheme regime under the Corporations Act.

ASIC has granted some relief for responsible entities of litigation funding schemes in ASIC Corporations (Litigation Funding Schemes) Instrument 2020/787 to ensure the Corporations Act operates effectively for these types of schemes.

The Dollar Disclosure relief was granted following an application for relief from the Association of Litigation Funders of Australia (ALFA), an industry body representing a range of litigation funders operating in Australia.

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