Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein) | Oireachtas source

Is dóigh liom gur féidir leis an píosa reachtaíochta seo difríocht shuntasach a dhéanamh sa tslí a dhéanann na cúirteanna láimhseáil ar chásanna ina bhfuil éagóir déanta ar chatagóir mhór daoine agus tabharfaidh sé deis do níos mó daoine cóir a bhaint amach.

The Multi-Party Actions Bill 2017 will revolutionise the way our courts handle cases and could give countless numbers of people greater access to justice than heretofore. The Bill represents a significant step towards a fairer, more equitable justice system. At the launch of the Law Reform Commission paper on multi-party actions in 2005, Ms Justice Susan Denham, as she then was, said that the law was too expensive, too slow and too unequal. Unfortunately, that remains the case yet the proposals developed in that paper have sat on a shelf ever since. The legislation is a potential game changer in terms of how the courts deal with large numbers of people affected by a particular injustice or inequity whose cases share a common issue of fact or law. The Bill has a very wide potential application. For example, it would have been of utility in the instance of the DePuy hip replacement cases. It could apply to a wide range of cases involving institutional abuse, especially the current tracker mortgage scandal, making it much easier and more realistic for the victims of this rip-off to sue the banks. I will return to the application of the proposal to this issue.

Multi-party litigation relates to groups of cases that share characteristics sufficient to allow them to be dealt with collectively. This is about access to justice, but it is also about efficiency and case management. At the moment, there is no comprehensive procedure in the Irish legal system which can deal with such claims. The representative case model is deficient for this purpose and of no use to many of the people our Bill would benefit because it only provides injunctive or declaratory relief. That one cannot seek damages is a major deficiency.

Currently, the only real option is for a test case to proceed and related cases to follow subsequently on the basis of that precedent. This model has significant drawbacks too. First and most significantly, the person taking a test case faces the very significant consideration that an order for costs will be made for which he or she alone will be liable. This is an enormous disincentive to taking any case, particularly for people who may be on limited incomes or dealing with debt already, such as someone in mortgage arrears. It also means that the person taking the case has no direct responsibility to others in the same or similar situations who do not have to be notified. It is essentially a single case on a single set of facts, even if the Judiciary has skilfully used the model to deal with classes of cases. That is constructive administration and, ultimately, not a sustainable model for dealing with these kinds of case. It is not possible to calculate the potential overall liability of all cases in the class or category of cases under this model. This is obviously difficult for the defendant, but also for potential plaintiffs for whom there might be nothing left after the first or initial cases.

There is obviously also the issue of legal representation and duplication of costs. To quote the Law Reform Commission paper on this matter: "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." I note that our proposals are based largely on the 2005 paper. I pay tribute to those who worked on that recommendation, in particular the lead researcher, Mr. Ronan Flanagan. The paper continues:

This is principally because the test case is not a recognised, and therefore controlled, procedure. Each case within the group is regarded as an independent unit requiring individual and separate attention. In this way, the test case fails to acknowledge the overlap among the group on the generic issue and thus allows for a separate billing of costs for individual cases.

In essence, there is duplication of legal representation and of the costs of litigation. The existing processes are totally inadequate for many people, and categories of people, who are seeking justice for the wrong inflicted upon them. While they offer some benefits, there is no reason they could not coexist with the model we propose. That model is much more dynamic and its major benefits are that it would reduce the cost of litigation, reduce duplication and cost of representation, make better use of court resources and, crucially, improve access to justice.

The process would work as follows. A group of persons affected by some injury or injustice who wish to take a case would first contact the Courts Service to see if there was any previously certified relevant multi-party action. If not, a nominated judge could certify that there is a common or related issue of law or fact and that a multi-party action offers a fair, appropriate and efficient procedure for resolution. This is governed under section 2. We have also sought to implement the Law Reform Commission recommendation on commonality as a requirement, rather than the condition of "sameness", which is far too restrictive. A requirement for sameness can restrict the ability of plaintiffs to join a case currently. Under the proposed procedure, a judge would issue a multi-party action order, as set out in section 3, including criteria by which permission to be entered on the register shall be considered. The order would also contain directions on the publication of the multi-party action, which is an important mechanism to ensure that other people who have been affected by the issues would be notified of the case and their ability to join it. That is dealt with in section 4. This is crucial given that there is every possibility that, as with the tracker mortgage issue, the affected parties will be spread across the country. They would be unaware, save for newspaper reports, that a case was being taken. As such, this procedure allows them to be notified.

We have again gone along with the Law Reform Commission's recommendation of an opt-in mechanism, rather than an opt-out mechanism, for reasons of efficiency and certainty. This is subject to a power of the court to oblige that an action to be joined to an existing multi-party action. The judge's directions will also contain a closing date after which people cannot join the multi-party action. Section 5 relates to the directions the judge may give as to the resolution of the order. The documentation must include the cause of action and the order may contain any further directions required for the appropriate fair and efficient resolution of the multi-party action issues. This provision is crucial in terms of the flexibility the judge will require in case management. I reiterate that efficient case management and administration goes to the heart of this process.

Section 6 relates to the lead solicitor who will lead the action and his or her appointment. This efficiency in legal representation is a central benefit of the model. Section 7 relates to the lead case or cases to be agreed by case conference to represent the central and common issues in the set of cases. Section 8 relates to the effect of a multi-party action order and the circumstances in which it is binding. Section 9 provides for costs, which shall be divided equally unless the nominated judge orders otherwise. Liability for costs shall be joint and several. Section 10 provides that nothing in the legislation shall be construed as limiting or reducing the power of an authority to make rules regarding a court, provided they are consistent with the provisions of the Bill. Section 11 provides for the Short Title and commencement.

The Bill offers radical reforms which could make a considerable difference to people's ability to take cases as a class. We are far behind comparable jurisdictions in not having an avenue to justice like this.

It could have a similar effect and impact as processes such as the class action in the United States, or the group legal order in the UK. There are many people out there who are the victims of such injustices and who would have an actionable case but the cost of taking it on themselves makes it effectively impossible. This brings access to justice within their grasp. It is not difficult to think of the many categories of people who could have and can benefit from the ability to take cases. For example, victims of institutional abuse could have taken cases against the institutions which allowed that to happen - together rather than as individual cases. Victims of related medical negligence, or malpractices, could have taken actions against the hospital or doctor responsible. People who suffered due to faulty products, medical or otherwise, could band together in an action under this process. The most current example is the tracker mortgage scandal. The manner in which the banks have treated the victims of the tracker mortgage scandal has been duplicitous, deceptive and scandalous, and the Government has essentially facilitated them, coalescing in their timelines. The banks have essentially taken advantage of the fact that those affected are often not in a position to take an action themselves, because of the financial cost in doing so alone. Very often, large institutions are in a position of strength in legal proceedings because of the issue of costs. This Bill redresses that balance.

I believe that this Bill will allow for people to proceed on the basis of strength in numbers and will embolden many to become part of an action where previously the fear of costs would have intimidated them. We want to give those affected by the tracker mortgage scandal and other injustices the tools to take on the banks or any other such institution, body or individual, to bring them to justice and to get what people are entitled to. We hope that all parties will support this legislation and allow it to pass through these Houses without delay. It makes sense in terms of court administration, the cost of litigation and representation, and access to justice.

See this speech in context