Tuesday, 14 November 2017
Multi-Party Actions Bill 2017: Second Stage
On behalf of the Labour Party, I unequivocally indicate our wholehearted support for this legislation. Indeed it would be contrary to what I did two weeks ago if we opposed it because two weeks ago, I drafted a similar Bill, which had 12 sections in total with a detailed explanatory memorandum of four or five pages. It was sent to the office of the Ceann Comhairle last week and details were published in the media. It received a very hearty welcome from individuals and organisations who contacted me and other colleagues. Some people were effusive in their support. The Bill had been through a period of time in gestation with me as a practising barrister. I could not understand why the rules of court never facilitated actions that are multi-party in nature and that arise in other jurisdictions across the globe. As Deputy Jack Chambers noted, they have been permitted in the Netherlands for the past 12 years while they are also permitted in France and a number of other countries. The issue is that there are rules and regulations to circumscribe the situation, which is important. I included them in my Bill. I was prompted to get on with the Bill in a definitive fashion about four weeks ago when I heard the Chief Justice, Mr. Justice Frank Clarke, make what I believe were very welcome comments championing the principle of access to the courts, which is a well-established constitutional principle. It has been interpreted by Mr. Justice Walsh and others down through the years in respect of articles of the Constitution. This blended well with the Chief Justice's stated objectives. It blends with and is complementary to that. I have no doubt that members of the Judiciary will welcome the implementation of the objectives of multi-party actions, be they enshrined in legislation, which is the preference of the Labour Party or by a substantial amendment to the current rules of court. The Law Reform Commission report of 2005 mentioned amending the rules of court but we are 12 years down the road and the matter has not been progressed. It must get an impetus from the legislative arm of Government.
I note that Sinn Féin was aware of the existence of our Bill and I am somewhat disappointed it did not contact me because a joint approach would provide it with greater strength. I have no doubt that the amalgamation of both Bills would be good because the Sinn Féin Bill is stronger in some areas while my Bill is stronger in others. I was hoping that this is what would happen because of the era of new politics or this new political dispensation. I am not a great believer in it but so be it. It would be a more coherent and stronger piece of legislation which would be to everybody's benefit.
Over the years, I have seen members of the Judiciary trying through judicial ingenuity to deal with groups of cases such as the asbestos cases or the hip implant cases. Mr. Justice Cross was innovative in the way he tried to deal with the hip implant cases. What we are dealing with is a group of cases that share common and indeed adequate or sufficient characteristics to allow them to be dealt with collectively. Mr. Justice Cross devised such a mechanism to deal with hip implant cases. Some people may argue for alternative dispute resolution, ADR, which has been used successfully to deal with multi-party scenarios without resorting to legislation. I discovered that ADR was used to successfully resolve the issue of the unlawful retention by a number of hospitals in the UK of organs and tissue from young children. Examples of multi-party type litigation in Ireland include social welfare equality cases and the Army deafness cases. The Law Reform Commission report indicated that these cases highlighted the need for reform in this area of procedure and emphasised why reform was necessary and the case-by-case random approach with which such litigation was being treated. I am of the view that the Sinn Féin Bill and my Bill would remedy such approaches because consistency is important. The social welfare equality cases involved the implementation of an equality directive from 1978 whereby the State could not discriminate on the grounds of gender or marital status. The Army deafness cases arising in the early 1990s involved complaints of noise-induced hearing loss by former members of the Defence Forces. It eventually became clear that there was huge liability on the part of the State on the substantive issue that it was negligent regarding the prevention of noise-induced hearing loss in respect of serving and former members of the Defence Forces. The Department of Health established the expert group to determine the appropriate standard for measuring hearing loss and tinnitus arising from hearing loss.
By consent, all Army deafness claims were adjourned pending the outcome of deliberations of the expert group. Then we had the green book which gave us the measures. The Civil Liability (Assessment of Hearing Injury) Act then came out of that. The Supreme Court then set out a stream of damages with regard to that and the early settlement scheme. This is important legislation in the context of the tracker mortgages scandal and the impact it has had on the victims of illegal activity, which some of my colleagues spoke about. It is nothing short of illegal activity by the subject financial institutions. This will be important for thousands of people who have been so victimised and who will be able to join a collective action to secure their rights. It would be very important because this legislation will ensure that people of limited means or who are virtually impecunious can get access to the courts and join an action. No one will compel them to join the action. They can join it themselves. We have to be very careful. There is free enterprise and freedom of contract for every individual. There is a right to a fair hearing. The European Convention on Human Rights is also involved.
I am fully conversant with the issues that must be addressed in the context of such legislation if it is successfully implemented. That is no excuse for more delay. We have representative actions here but they are of a very limited nature. They are only declaratory or injunctive. One cannot get damages. What one could get today in terms of the bank cases, which is an absolute scandal, is a declaratory action saying specific people are entitled to something. That is not damages. The last thing they want is to have to chase around again. The test case is also limited. There are two different categories. Sometimes one can choose the most appropriate to go forward from a pool of litigants which presupposes a degree of organisation among them. Sometimes without express co-ordination the outcome of a vanguard case can be awaited by others and that will provide guidance as to the possible outcomes of later actions.
In a test case, the plaintiff acts in his or her own interest with no responsibility or duties towards the rest of the pool, either in the institution or any subsequent trial. That is important. This is critical legislation which should pass Second Stage. It should be referred to committee and undergo further legislative scrutiny. The Civil Law Reform Group and outside bodies might have an input in it. We could have a hearing on it. I am sure Sinn Féin will be eager for the Bill to go to the next step so we get an opportunity to have all the submissions from various parties. The last thing we want to do is long-finger it. It is prospective legislation. The Minister of State said it may impact actions already in being. That is not so. If it has to be prospective, so be it. The prospectivity in terms of the tracker scandal is very clear and evident. Nobody has taken an opportunity yet to take them to court and the quicker, the better.