Dr. Joanne Blennerhassett:

Yes. Gabhaim mo bhuíochas leis an gcoiste as ucht an cuireadh a thabhairt dom a bheith anseo inniu agus an deis a fháil an reachtaíocht tábhachtach seo a phlé. Tá áthas orm a bheith anseo agus tá mé cinnte go bhféadfadh an reachtaíocht seo cabhrú le go leor daoine. I thank members for inviting me and giving me an opportunity to discuss this important legislation which has the potential to help many people. It is a pleasure to speak to the joint committee.

I am a legal consultant and law lecturer with a background in practice as a solicitor. I have been researching multi-party actions and the issue of collective redress for the past ten years. My doctoral research entailed a comparative examination of multi-party actions in a number of common law jurisdictions and I also examined Ireland's procedures for collective redress. I compiled my findings on the uses of multi-party actions in other jurisdictions and how they could potentially be of use here in a book which may be of assistance to the joint committee.

I propose to discuss Ireland's current system for delivering collective redress and outline the problems with it. In my written submission I respond to the Government's criticism of the Bill, as outlined by the Minister of State at the Department of Justice and Equality, Deputy Catherine Byrne. Owing to time constraints, I do not propose to set out my responses in detai,l but I would welcome questions Deputies may have on them. I also offer my assistance in any way I can with the legislation.

I will begin by examining the idea of mass harm, which is what multi-party actions, MPAs, are designed to resolve. Mass harm is severe or widespread damage which usually causes harm to many victims. We are all potential victims of mass harm which has become a feature of modern life. Ireland needs a legal procedure that can respond to the legal challenge presented by this reality. Thirteen years have elapsed since the Law Reform Commission published its report on multi-party actions, which is too long a period without change. The matter needs to be addressed urgently. For this reason, I am glad that the committee is examining legislation on the matter.

In the opinion of Ms Justice Catherine McGuinness, president of the Law Reform Commission when it issued its report on multi-party actions, the Irish methods of dealing with multiple cases have led to "appalling situations because of the lack of multi-party actions". In recent years there have been numerous cases of mass harm in Ireland, including the Volkswagen emissions scandal, pyrite damage, contaminated blood products, Army deafness claims, asbestos-related ill health and the recent tracker mortgage rate abuse by banks. Ireland is one of the few common law jurisdictions that does not yet have an effective mechanism for multi-party litigation. Instead, the courts occasionally use a confusing array of alternative methods in cases where a multi-party action mechanism would have an obvious role.

It would appear that the MPA litigation is necessary as a remedy of last resort where the other techniques failed to deliver collective redress and where there is, therefore, no alternative but resort to the courts.

MPAs, by enabling victims of mass harm to combine their legal actions, can be a key tool in achieving access to justice. Litigants can overcome many of the impediments that they face in taking legal actions individually. It gives strength in numbers. It allows them to pool their resources because very often they deal with David versus Goliath-type scenarios.

I will now discuss the current Irish mechanisms for dealing with mass harm, which I believe are inadequate. These are private actions and multi-party procedures that currently fall short of MPAs. They are rarely invoked because they are of such restricted use. The first mechanism is representative actions. The Irish courts have taken a very restrictive attitude towards them. They are only allowed in very limited circumstances where parties have the same interest and where certain prerequisites are met. They cannot be used for tort claims. Most of the cases that I have talked about today are tort claims. It is not possible to get damages and crucially, it is not possible to get legal aid.

The remaining tools are joinder and consolidation, which are technical ways of joining cases, and finally we have test cases. These are commonly used and are unduly costly. They also result in procedural inefficiency, as well as unnecessary duplication. In addition, the risk of adverse cost awards, on which my colleague, Ms Barry, has spoken, and potentially ruinous costs make them very unfavourable.

I will examine a few of the cases that exemplify the problems of mass harm litigation in Ireland. They show the problems that can occur when some of these procedures I have just mentioned are used and there is no MPA procedure. There is huge inefficiency in terms of financial terms and delay. By proceeding on the basis of these fragmented and piecemeal procedures, access to justice is impeded, there are gross procedural inefficiencies and there is procedural unfairness.

We have had the social welfare equality cases, the Army deafness claims, and the best recent example is the pyrite construction dispute. The latter ended in 2011 and ran for more than two years with claims of more than 550 homeowners. It was the longest-running case in the history of the Commercial Court and one of the most expensive court cases in the history of the State. Each plaintiff had to take a separate action and they all had to instruct their own lawyers. This case typifies the problems inherent in the current procedures whereby plaintiffs must initiate separate and individual claims and seek damages at huge cost, delay and causing wasteful inefficiencies. I believe that these examples show that it is in the interests of the State, litigants and of justice to embrace some form of multi-party action procedure to avoid these anomalous cases. Such a procedure would enhance access to justice and help overcome the obstacles such as the high litigation costs faced by individuals. Another key factor is that it would make mass litigation more manageable and allow case management.

There are particular difficulties with multi-party litigation in Ireland, as my colleague, Ms Barry, has mentioned. Funding cases is a crucial problem, in particular in respect of legal aid. We do not have an effective system for legal aid. As the Irish scheme specifically excludes test cases and multi-party actions of any sort, it is not available for representative actions. In order to avoid the risk of ruinously expensive legal costs, litigants commonly proceed by using the device of men of straw. That means litigants will have no assets and nothing to lose financially in an action.Second, litigation insurance is generally not available in Ireland because professional third party funding is not permitted in Ireland as it offends against the rules on maintenance and champerty. Third, and also crucially, costs follow the event. That means that the loser of a case usually has to pay the entire amount of the costs. It is a double financial burden to be obliged to meet both sets of costs in the action. Were multi-party actions to be introduced, there would have to be changes as to how costs are currently decided.

The Law Reform Commission report in 2005 cited Professor Hodges of Oxford University and his call for "a managerial mechanism to move forward resolution of all the individual claims". The commission recommended that any reform in this area should be based on principles of procedural fairness, efficiency and access to justice. In particular, it recommended that there should be active case management by the courts, which I think is key in dealing with large-scale cases.

Let us consider what happened in Europe. In January, just a few weeks ago, the European Commission published a report on the implementation of its 2013 recommendation on collective redress. At present, 19 member states in total have implemented collective actions across various sectors. The report states:

In the Member States where [collective redress mechanisms] do not formally exist there appears to be an increasing tendency of claimants attempting to seek collective redress through the use of different legal vehicles ... This may raise issues concerning effective prevention of abusive litigation.

That particularly applies where there is a lack of safeguards, as provided for in the European Commission's recommendation. Ireland remains one of eight member states that still do not provide for any possibility to collectively claim compensation in mass harm situations.

In conclusion, it is clear that cases of mass harm and multi-party litigation occur in Ireland. Due to the lack of an appropriate MPA mechanism, other methods are used by way of improvisation thus causing appalling delays, costs and injustice. The experience of the victims of Thalidomide, for example, shows that this current practice is causing much difficulty. The MPA experience in other jurisdictions shows that they can enhance procedural justice in appropriate cases.

It is important to note that collective actions alone are an outdated approach for dealing with mass harm because they are not the most efficient route to justice. As we know, the courts are not the only forum in which to resolve legal disputes. We must also learn lessons from emerging new techniques of collective redress. We need to adopt a modern holistic approach. This requires a combination of legal tools, including regulation, alternative dispute resolution, the courts and ombudsmen.

In summary, MPA litigation is a necessary remedy of last resort to deal with mass harm where other techniques fail to deliver collective redress. Mass harm affects a huge number of people, particularly consumers. Professor Hodges also talked about needing better ways to manage the unmanageable. Mass harm litigation can become unmanageable and MPAs offer a way of dealing with this.

I believe the current procedures are hugely flawed and cause injustice. There is no perfect solution to meet the challenge of delivering collective redress. After 13 years we finally have this legislation that could help manage the reality of mass harm litigation. The MPA procedure is what the Law Reform Commission recommended after extensive research and consideration. This Bill is the best option we have at the moment for creating a procedural mechanism to deal with multi-party litigation. Therefore, I suggest that we do our best to work with the legislation. It might need some fine tuning, as most legislation does, but let us not lose momentum. Let us not get left behind in the Dark Ages without an effective multi-party action procedure. The law is dynamic and we can always incorporate changes and collective redress techniques as they evolve and become available but at the moment they are very limited. Without doubt, Ireland needs to finally overhaul its collective redress procedures and introduce an MPA procedure to remedy what I see as a severe gap in its legal mechanisms. I thank the committee members for their attention.