Professor Gerard Whyte:

First, the system of levying costs in the United States if different from the system here because lawyers there can charge contingency fees, claiming a share of whatever award is made. That is precluded in our system.

I do not see that as a particular problem.

The LRC in 2005 recommended the introduction of multiparty actions for the reasons I gave earlier. I would support that for one additional reason, which I mentioned in my original statement but did not mention in my oral presentation. Sometimes, when dealing with a Department and challenging some aspect of questionable policy, if one sets up a legal case, the case will be frustrated if the Department decides to settle it and then imposes a confidentiality agreement on the litigant. There is evidence of this in the Travers report dealing with the nursing home fees in the 2000s. A class action would counter that because if the Department is facing a class action taken by two or three people representing a larger class, then settlement of that action changes the policy and so, for that reason, there is a need to introduce class actions. At the moment, questionable public policy can be protected by a Department simply settling cases and preventing the courts from having a chance to scrutinise what is going on.