Mr. Dave Coleman:

I was not dodging a bullet. There is nothing that has been said in this room today that I disagree with and I will continue on from what has been said.

I am the founding partner of Coleman Legal Partners and I have specialised in group litigation for the past 30 years.

The use of any judicial system by a group of citizens, and their advisers, with common purpose in the absence of formal court rules to guide them necessarily means a journey by all parties, be they plaintiffs or defendants, that is fraught with risk and exposure to risk that often, in practice, precludes large numbers of people, and their rights have been taken from them without ever being vindicated. I do not say that from a subjective point for view. I say it from an empirical point of view as this has been my experience.

I have received a copy of the Bill.

While I apologise for having tracked and changed it, I felt it was a way to show the committee that there may be another way to look at the Bill. While I apologise for the damage I did to it, it was the best way to explain myself.

Later in the Bill, there is provision for a judge to decide on more than one lead case, but that is not stated in the definition of the lead case. The definition refers to a case which may be chosen as representative of the class or group. In so far as it goes, that seems very logical but already at this point the massive disparity between a plaintiff and the defendant in any case has reared its not too pretty head. What one sees is not so much what the lead case is but rather who the lead plaintiff is. That is a massive difference when it comes to the citizen and his or her right of access to justice. A simple answer is that it is the case which best represents the set of circumstances the court is tasked with deciding. That is the simple answer. The practical answer is that the person in the plaintiff case who is the best person in the best position to carry out this case to its ultimate destination must have certain attributes from a practical point of view. I will explain what they are. The plaintiff must be willing to go forward as the lead plaintiff and, in effect, do the heavy lifting on his or her own behalf and on behalf of many thousands of others. In respect of the day-to-day management of the case, he or she must follow absolutely everything. He or she must be up for it and know what to do, including how to do affidavits and know what that means. Ultimately, the plaintiff could have the responsibility of carrying the costs where the value of the case being discussed may run to tens of millions of euro.

I have done these cases and, thankfully, been successful in most of them. However, I can speak to the risks that individuals face in this country when seeking to vindicate their rights. I can speak to the bank cases and the pyrite cases and, by my experience, shed some light for the committee on what this legislation ought to achieve. The circumstances of the lead plaintiff must be such that the facts of his or her case govern those of the group. It is a fact of life that not every case will be ad idemwith its next neighbour. One is going to try to distil some basic principles out of all of the cases which are enough to decide the group. There will be a degree of subjectivity, such as the extent of damage etc. on an individual basis. The last circumstance of this person is the one which everyone has spoken about here. That is that he or she must be such that he or she can withstand any and all negative costs orders made against them. It is not just the costs of the case. During the course of the case, it has been my experience that certain judges have made interim costs orders against lead plaintiffs in respect of late filing of papers, etc. One might blame the solicitor for that but when one is running a mass tort, one may have several thousand people to deal with and it is not always possible to get it right according to the timeline the judge sets out.

We have had to deal with interim costs orders against plaintiffs in those circumstances. Something should be done about that. This rule allows any defendant, most of which are large corporations or, indeed, the State, to adopt their first defensive strategy, which is to play the man and not the ball. They will pick the test plaintiff as the man who has the means to pay their costs or a large portion of them should they win. If they succeed in getting him nominated, the defendant can, under the current system, apply to the High Court to have its chosen cases in the group litigation taken. That plaintiff is now on notice and he will worry throughout the case, which gives the defence its first advantage. One has to ask at this point who in his or her right mind would place what could be the result of his or her life's work on the line to incur the massive liability on behalf of others whom they most likely have never met save with the common interest of a loss they blame others for? What solicitor would advise someone to take on that risk? That is a rhetorical question in the sense that the answer highlights immediately the problems any plaintiff and his or her advisers have. In a case I successfully concluded several years ago on behalf of 300 plaintiffs, the defendants paid out an eight-figure sum. I cannot name the case or the parties because of the terms of the settlement. One of the lead plaintiffs was a man of considerable wealth. He joined the case as an ordinary plaintiff and placed himself in harm's way, knowing a loss would cost him many multiples more than the loss he was complaining of in the first instance. Notwithstanding the clarity of the advices as to the nature of an adverse costs result, this man stood his ground. Eventually, he and his fellow plaintiffs were vindicated. To say his belief in justice caused him and me many sleepless nights is an understatement. He remains a friend today.

No one, including me, wants to see the courts system with any legislation enacted to guide it used for rampant litigation which clogs up the arteries of the system in order to vindicate minor rights of individuals. We understand this. This is not what we see as the intention of the legislation. Neither does anyone want to see citizens precluded from availing of the right of access to court for fear of a draconian costs order, which might ultimately be his or her ruin. The job of the legislator is to pick through this issue and assist in any process which treats all protagonists equally. The old costs rule of costs following the event has an exponential effect in multi-party litigation on the single individual who is saddled with the costs of a case taken on behalf of thousands. This was never intended to be the result of that rule. The rule demonstrates the stark difference between the realities of the protagonists where the plaintiff is a minor individual, whose opponent is often a multinational or, indeed, the State.

Similarly, the appointment of one solicitor, or more than one depending on the size of the case, is a thing to be desired. The proper execution of a multi-party action requires action by a solicitor with three attributes. The first is that he or she must have the necessary experience of litigation of this type. The second is that he or she must have the capacity to administer a case which may have thousands of parties. The third is that he or she must have the necessary resources to execute the case from inception to conclusion. The third is interesting and I will speak to it later. I have often seen and met solicitors in smaller firms who are swamped by a case that has grown legs from its initial birth with one client or so. The applicability of the facts to a larger cohort has made that solicitor unable to adequately and properly deal with the numbers involved. Given the adverse nature of a costs order, it may be prudent advice for other solicitors with similar clients in similar situations to wait and see what happens with the lead case. Everybody is now on the ditch. It means the resources are limited and applied to a lead case and there is no cohesive strategy to vindicate the rights of people in the most efficient way. This will compound the lead solicitor's problems if the clients do not come to the case to allow it to be adequately resourced. We will speak to resources later.

The administration of a case is important to all, in particular the clients. There is of course the lead plaintiff about whom we have spoken but everyone who has suffered as a result of a mass loss has the same right as the lead plaintiff. However, they must follow on, which means having to be educated in the progress of the case and in its nuances as the defendants often bring forth information or material which heretofore has not been available to plaintiffs and which can change the nature and style of a case. We will talk about that coming up in the process of discovery later. In deciding an issue, the court will rightly want to know that those affected by a case are suitably informed of its progress. Technology has greatly assisted this administration but individuals in the current system all carry a fear of having to pay their own and others' costs. The majority of queries may have to be dealt with by the solicitor on a one-to-one basis.

People are genuinely scared because of the nature of the current system which involves joint and several liability costs.

After allowing for the first two requirements, namely, experience and capacity, the resource most necessary to execute a case is money. In the multi-party section, there is a reference to the High Court stamp duty of €190 and an Injuries Board application fee of €45. Taken together, this comes to €235 which might not appear like a large sum which would act in any way as a barrier to entry into a case with a larger group.

Recently, outside Leinster House, the wives of serving soldiers protested at the pay and conditions of their partners. Not wishing to enter that debate and the merits of their protest, it is fairly obvious these women did not stand in the manner they did because they had nothing better to do. Rather, like many others in our society, they have been put to the pin of their collar to make ends meet. I mention this group because my firm advises more than 300 ex-soldiers who took and were affected by the anti-malarial drug Lariam. The merits of the case are not for this room but, respectfully, the mathematics are. To ask the wife of a soldier to provide €235 for membership only of a case which has a long journey with both the causation of the case and the personal effects on each individual soldier to be proved is something which ranks well above the day-to-day priorities of this particular cohort.

From a defendant's point of view, the absence of the €235 per case means that this cost is avoided at the end of the case, should it be successful. One does not have to issue proceedings to be part of a multi-party action under this Bill. Instead, one creates the register outside of the court and then joins it. For example, in the case of Lariam, the defendant, being the Department of Defence and the State, will know whether somebody was a member of the Defence Forces and whether they were given the drug. Accordingly, the membership, or otherwise, should not necessarily involve these costs incurred.

The Injuries Board will not deal with these cases because it cannot do so. The €45 charge is spent finding out something we already know, a point which we have been told in our discussions with the Injuries Board. This is a typical example of how this goes.

If there were 500 people in this cohort, the total saving is €117,500. To my mind, that is a significant saving. The size of this figure in the overall cost of the case may appear small to a defendant. However, that highlights the inequality between plaintiff and defendant. To find €235 can be a lot harder than finding €117,500.

The requirements to fund a case do not stop at the entry point. The cost merely allows for entry. The management and the proving of the case, as well as its execution to its conclusion, can be massive. A typical expert witness in a banking case will cost €50,000 to brief, report, respond to discovery and attend a trial. There may be many expert witnesses. Who will pay them? Will it be the clients, private funders or the solicitors themselves? No expert, be it in a medical negligence or financial matter, will work for nothing. Somebody has to pay him.

We already have shown that not everybody can meet €235. If one has 500 people to run a case, brief counsel, hire people to deal with massive discovery - sometimes one has to hire up to 20 barristers to deal with discovery - one can be faced with a bill of up to €1 million. One can say it is fine with €2,000 per man. However, that €2,000 is a bridge too far for so many people.

This legislation has to be able to the deal with a hybrid of all types of funding, be it that people can opt to fund themselves, partake of finance if it should be beyond them, or the solicitor can deal with the costs. Few solicitors would be in a position to carry these costs but it can be done. The adage of ní neart go cur le chéile comes to mind. It is possible for everybody to come together to do this. However, it is not always the case. What does a lead solicitor do when he knows some of his 500 people have not paid because they simply cannot? Does he tell them they cannot come in? Does he carry the cost himself? Does he not tell the others? These are the practicalities of dealing with these cases.

I have never had a multi-party case - I have run more than 20 of them - where everybody paid up. They did not because they could not. We just had to suck it up. That is no way to deal properly with people's right of access to justice, particularly in this day and age. Normally, it is the poorest who are most affected by these cases, not the richest. Those are the people who need to be minded most, in my respectful view.

Section 4 covers the day-to-day issues concerning the size of the particular cohort. The Bill states it should be an application to the High Court to expand the register. In my respectful submission, there is no need to do that. One can create the register first and then let the solicitors deal between themselves. I am doing a case in France where there are 11,000 people in the cohort. All discussions are not in the courts but between the plaintiff and defendant lawyers, spending hours poring over the list, deciding who is in and who is out. That is the proper way to do it. To have these differences aired in court, when it is quite clear to both parties as trained lawyers that somebody is in or out, is a waste of the court's time. It will certainly clog up the system, a system designed to simplify the process and to make it less expensive.

Section 5 deals with the publication of the existence of the register. During the establishment of the Residential Institutions Redress Board, ads were taken out by the State all over the world for the whole diaspora to see this was happening in the home country. People who had often left for the very same reason the redress board was established had to be contacted and identified. It is to be hoped we will never have the dark time of such a redress system again. I mean that because I was actually involved in the negotiation of the Act itself. There should be a provision in this legislation to allow for the inclusion of the existence of the register in Iris Oifigiúil. In turn, this will notify it to people and it can be picked up by the media and so publicised. Otherwise, the cost falls once again on the plaintiffs to do so because the defendants will not do this.

The adverse costs order is one of the main parts of the Bill which I feel needs to be thought through carefully. There will only be one shot at this and it is incumbent on everybody to understand who the legislation affects. We can start with the most vulnerable in society, wards of court. For example, if a person is responsible for a ward of court and believes those rights have to be vindicated through some loss which has affected this person, he or she has to consider carefully the effect of an adverse costs order against that ward.

If provision has been made, perhaps in a familial setting, to provide for that person, the money that is set aside for the person is at risk if the person is part of a case. That is a huge barrier to entry for anybody who is prudent in their advice to a plaintiff on the basis that an adverse costs order is joint and several in fairness to all. One can also include vulnerable people from a socio-economic perspective in our society. One can show that the people who are most affected are the people who have the liability of the people who cannot pay foisted onto those who can pay.

I have a clear example of those who can pay. Since 2010 many families have struggled in middle class Ireland to get back to a place where there is some element of security in their personal lives. I was approached by a group of 200 people who claim, in my view rightly, that they suffered at the hands of a particular financial institution in a bespoke matter. There was a finite number and the issue was quite clear. I had previously taken a case against another financial institution on the same grounds and won it. This time, however, because it was after 2010 and people had been sharpened by the losses most people suffered in the downturn, they could not find a lead plaintiff among themselves and they would not put themselves forward as party if their improved lot, based on the sacrifices they made in those years, was once again put at risk for a court case. They could not go forward, so they had to go back. In reality they were denied their access. We have great theoretical access to justice here, but the reality of it is completely different. These cases must be funded and people will lose twice if there is an adverse costs judgment - what they put in and what they will have to pay up. On the other side, the defendants might say that is fair, given that they have incurred those expenses in vindicating themselves. However, to take it against one party when the benefit of the case runs to their defence of many cases is incorrect. In my view this Bill should not allow the targeting of rich or richer people with the expense of those who cannot afford to pay their way but yet have the equal right of access to the courts.