Ms Eilis Barry:

FLAC welcomes, and commend the drafters of, the Multi-Party Actions Bill 2017 and the intention behind it to increase access to justice for vulnerable and disadvantaged individuals. We are also grateful to the Joint Committee on Justice and Equality for giving detailed consideration to this access to justice issue, and we would like to stress that FLAC is very happy to provide any assistance it can to the committee on this and other issues. We have submitted quite a number of detailed documents setting out the work of FLAC and its experience of multi-party actions, especially in the area of the implementation of the social welfare equal treatment directive and the recent collective complaint to the Council of Europe. I do not intend to reiterate what is already before the committee.

While FLAC welcomes the Bill, our biggest concern at the moment is that there is no legal aid for multi-party litigation. That needs to be addressed to make the Bill effective, particularly for people on low incomes or potential claimants whose potential damage may be just too low for a private firm to take on the risk. The Bill clearly envisages that proceedings should be issued, and I welcome the suggestion that it may be possible to amend that to have a register. Even if it was the case that a person could join the proceedings by simply joining the register, that person will still need legal advice as to whether he or she should or should not. It is a critical issue that legal aid and legal advice would be available.

The LRC in its report addressed this issue in annex B with a very simple amendment to the Civil Legal Aid Act which provides that multi-party actions should not be excluded. For the purposes of this oral presentation we have been invited to comment on the Government's criticism of the Bill, as expressed by the Minister of State, and that is what I will do.

It has been suggested that the Bill is technically flawed in that it seeks, inappropriately, to enact as primary legislation a scheme that was intended by the LRC to be in the form of rules of the Superior Courts.

The Superior Court Rules Committee has the power, exercisable with the agreement of the Minister for Justice and Equality, to make and change the rules of the superior courts. It appears that the Law Reform Commission envisaged reform by way of the rules committee rather than primary legislation. However, there is nothing in principle or law to prevent changes from being brought about by primary legislation. We believe it would be constitutionally suspect if the Oireachtas were in some way to be disbarred from introducing legislation to seek to improve access to justice in the absence of the Superior Courts Rules Committee making such rules for whatever reason. Nevertheless, it may be more appropriate to include in the Bill a provision that procedural rules would be adopted to give effect to the provisions of the Bill. It is not necessary to exclude the Superior Courts Rules Committee and the Bill could be amended to provide that the committee would make procedural rules.

We have also been asked to address the issue of tracker mortgages. The overarching point in that regard is that the tracker mortgage scandal was clearly the catalyst for publication of the Bill. Irrespective of whether multi-party actions are an appropriate way to deal with the tracker mortgage issue or whether there is a more efficient redress system available, this does not take from the fact that we do not have formal effective procedures for multi-party litigation. The Bill is a significant improvement and development in that regard. There is no doubt that issues will arise in the future which would benefit from having this legislation in place.

It is not clear that the redress programme in place would achieve the resolution of all tracker mortgage cases, particularly the more egregious cases where repossession proceedings have been brought or family homes repossessed. If the procedure provided for had been in place when the tracker mortgage scandal emerged in 2011-12, it is arguable and certainly possible that some of the issues could have been addressed by now through such litigation.

The Government's statement queried whether multi-party actions were a viable way to deal with tracker mortgage issues. Clearly, there are different types of plaintiff, claim and lender involved and the losses incurred also differ. However, the core issue of overcharging on interest creates a commonality. While multi-party actions may not be the best procedure or even a necessary one for every claim arising from the tracker mortgage scandal, it is difficult to argue that they would not be a suitable vehicle for at least some of the claims.

The Government's statement noted that the report of the Law Reform Commission was relatively old and that it would be appropriate to consider developments that had occurred in the meantime, in particular, at European level and internationally. While FLAC agrees that it is wholly appropriate to consider these developments, none of them suggests the current lack of provision for multi-party actions is in any way justified or should be maintained. Most recently, the EU anti-trust damages directive which relates to damages under national law for breaches of EU competition law makes provision for collective redress. It has also been suggested the matter will be addressed by the President of the High Court in the review of the administration of civil justice. While it is welcome that the President of the High Court will consider this matter as part of the review, we hope his review will go beyond multi-party actions and examine other barriers to access to justice, for example, class actions, standing rules on costs and protective costs and other forms of resolution of matters. It would be unfortunate if the review were, in some way, to inhibit the Oireachtas i legislating on matters related to access to justice.

Some technical issues were raised by the Government about the Bill. FLAC is not overly concerned with a number of them. It is correct that an element of the Law Reform Commission's proposal is admitted, namely, the requirement that any person joining a multi-party scheme agrees at or before the time he or she joins it to the terms of any settlement arrangement. This matter could easily be rectified and I am not sure it is a critical issue.

Concern is also expressed about the designation of a lead solicitor under a Bill and whether this could, in some way, impinge on the right of access to the courts by an individual with a legal representative of his or her choice. It must remembered that the parties are opting into this system which is in no way compulsory and that the High Court judge will have a key role in ensuring the lead case fairly and adequately represents the interests of all those on the register.

A further concern is raised about whether it would be considered safer for any such Bill to apply to new proceedings only. On my reading of the Bill, it is not immediately clear that it purports to apply to existing proceedings. It is important to remember that it would not change substantive rights or even substantive remedies. It is more a case management Bill than one which would change existing rights. Again, that concern is not a critical issue.

The Law Reform Commission has subjected this matter to considerable scrutiny and analysis. It is clear from its report that it considers the proposal to be an alternative rather than a radical one. While the Bill clearly is not the solution to remove all barriers to access to justice, it attempts to deal with some of them. For that reason, FLAC welcomes it.