Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein)
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Go raibh maith agat, a Chathaoirligh. Ba mhaith liom buíochas a ghabháil leis na daoine atá tagtha isteach chun labhairt faoin Bhille seo.

I thank the guests for their patience and for coming here to discuss what I believe is potentially very significant legislation. I have circulated an opening statement and I will try to get through it briefly. The references to specific sections are just an aid to members.

The Bill has been proposed by me and Deputy Pearse Doherty. The ability to bring about litigation of the kind alluded to in the legislation would be of very significant value to a wide variety of potential applicants. It could increase access to justice significantly and open up avenues that did not exist previously for many affected by particular injuries and injustices. In the first instance, I will note that there are forms of group litigation already in Ireland, but none of the kind proposed, and that all have some deficiencies. In particular, the representative case model provides only injunctive and declaratory relief. It is not possible to seek damages, which is a major deficiency.

An model on which our witnesses are likely to have considerable knowledge is the test-case model. The option for persons involved is for a test case to proceed and related cases to follow subsequently on the basis of that precedent. This is a real route that can realise damages and other remedies, and it has been used extensively in Irish courts. This model has significant drawbacks, however.

Most significant, the person taking a test case faces the very significant consideration of costs being awarded against them and being liable for that amount on their own. This is a disincentive to taking any case, particularly people who may be on limited incomes or dealing with debt already, such as someone in mortgage arrears.

The issue of legal representation and duplication of legal costs is also relevant. It also means that the person taking the case has no direct responsibility to others in the same or similar situations and those persons do not have to be notified. It is essentially a single case on a single set of facts, even if the Judiciary has creatively and pragmatically used the model to deal with groups of cases. It is also not possible to calculate the potential overall liability of all cases in the class of cases under this model. This is not ideal for plaintiff or defendant.

The Law Reform Commission, LRC, paper on which this Bill is based states, “The test case approach encourages, even if it does not validate, the multiplication rather than the division of costs for the generic issue among the members of the group." There is clearly a real need for such legislation. It can, I believe, be of huge benefit to our legal system and to many citizens. I am looking forward to engaging with this session to see how we can improve it and amend it. I hope that this will be an evolving process. I wish to say that I am very open to suggestions and amendments, not only from my colleagues on the Committee on Justice and Equality but also from the expert witnesses.

I want to offer some brief observations on the submissions I have received. I was going to address some of the criticisms levelled by the Government during Second Stage, but I believe the submissions by Dr. Blennerhassett and by the Free Legal Advice Centres, FLAC, address quite a number of those criticisms. An issue about costs was raised by both Dr. Blennerhassett and FLAC. I would be supportive of the idea of civil legal aid in principle, and I did note the draft Bill in the LRC paper. However, as that would involve a charge on the Exchequer, it would not be possible for me, as an Opposition spokesperson, to have included that in the Bill and to move it. It is certainly something to which I am very open. Dr. Blennerhassett raises some very interesting points in her submission on changes to the manner in which costs are decided, especially where costs follow the event and in terms of conditional fee arrangements. I would be interested in learning more about that.

A point was made in both the debate and in some of the submissions about tracker mortgages, and I note that Dr. Blennerhassett has identified that it could be complicated and that there may be better routes, although FLAC has submitted that it could be a viable route to seeking redress. In any event, I have instanced that to a large extent as an example rather than necessarily the only circumstances in which it would be relevant. There is a significant amount of discussion of other remedies, for example, alternative dispute resolution and ombudsman and regulatory redress. They are areas of interest. I also note that the civil law review will not consider those. I would be open to hearing more about those solutions, but ultimately a route such as this legal route will be necessary. There are also points concerning settlement, and I am open to views on that. Dr. Blennerhassett makes the point well that tensions and differing expectations are inevitable within a group and that it may be necessary for a judge or regulator to approve a settlement. Again, this is an area that I am open to considering further. A point is also made about existing cases, and I am willing to take on board that it may well be the case that retrospection could be a difficulty, but that is a matter that we can discuss further.

Dr. Coleman's submission contains very interesting proposals. I am particularly open to the idea that the register should predate the proceedings on the basis of cost reduction, and we can explore that further, and also the proposed redrafting of the points made on costs which relates to section 9.

I look forward to hearing the submissions and views of members. I might ask Deputy Pearse Doherty to make a brief comment on the Bill in general before we open the discussion.