Twenty Years Later: What are the Risks Faced by Plaintiffs’ Counsel, and How have these Risks Changed?

The Class Proceedings Act, 1992 was intended to promote access to justice. To do so, it uses the availability of premium fee awards to incentivize lawyers to undertake class actions. Premium fee awards may be calculated as a percentage of the recovery or a base fee with a multiplier applied to the base fee. This premium is designed to reflect, inter alia, the inherent risks associated with the conduct of class proceedings on a contingency basis. However, the landscape of class proceedings litigation has drastically changed since the inception of the CPA over twenty years ago. Class proceedings have become increasingly more protracted and considerably more expensive to litigate. This sea change has necessitated a re-evaluation of the risks confronted by class counsel in prosecuting class proceedings in order to develop a modern understanding of the context in which the goals of class actions are now pursued. This paper explores the risks currently faced by class counsel with a view to developing a new understanding of the context in which class actions are pursued.