Dáil debates

Tuesday, 14 November 2017

Multi-Party Actions Bill 2017: Second Stage

 

9:40 pm

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

It is the case. I appreciate the Minister of State is not currently a member of a committee but that step has become part of the new politics the Government is so keen to extol. It is possible for us to deal with all of the issues raised by the Government at pre-legislative scrutiny.

The first of the Government's primary objections to the legislation is that it may not be entirely suitable for the resolution of the tracker mortgage issue. We are setting up a model. I have instanced the tracker mortgage as perhaps the most obvious contemporary example of a large-scale injustice involving common issues of fact or law such that a multi-party action would be germane to and suitable for those wishing to take a case to the courts. It may not be the best approach but is a potentially suitable example. It would be for the potential litigants and the appointed judge evaluating the application to decide whether it would be a suitable approach. Regardless of whether the tracker mortgage is a suitable case and whether individuals had a case that satisfied the appointed judge, the model would still stand on its merits and have application to a wider range of areas.

The second substantial criticism is that time has moved on since the Law Reform Commission report. In reality, very little has moved on. There has been no change to relevant legislation and the Government has done nothing on the issue. There has been very little commentary about it or progress on it and there has been no relevant legislative change in Ireland. The Minister of State, Deputy Catherine Byrne, said that:

[C]onsideration needs to be given to the relevant intervening developments that have taken place at national, European Union and wider international levels. This includes our neighbouring jurisdictions of England and Wales, where group litigation orders have been in place for the past 15 years and from where valuable lessons regarding multi-party actions may be learned.

That is incorrect because those developments did not occur in the intervening period. The Law Reform Commission paper specifically references those group litigation orders, which pre-date the 2003 and 2005 consultation papers. The developments, therefore, were already taken into consideration.

The third criticism offered by the Government is that the Bill may be based too closely on the proposals of the Law Reform Commission. Not much can be said on that issue.

The fourth criticism, which is in respect of the rules of court, is probably the most substantial issue dealt with by the Ministers of State, Deputies Byrne and Stanton.

A number of issues need to be addressed in this regard. The first is that 12 years have passed and neither the Superior Courts Rules Committee nor the Government has done anything about this. I received a lengthy response from the Minister, Deputy Flanagan, to the question on whether the Government had taken any action on this. The upshot of the response was, "As such, I will continue to bear it in mind for discussion and possible action in the general context of any upcoming reforms in the civil justice area." There are no plans to deal with this on the part of either the Superior Courts Rules Committee or Government. This has implications for administration, but the costs for litigants, the manner in which a case is taken and the ability of litigants to take cases clearly constitute an area of public policy. It is very clearly within the purview of this House to make decisions in this area. How else should those Members of the House who wish to advance the case for multi-party actions do so except by way of legislation?

Another point I will make is that the only reason the Law Reform Commission supports the making of these changes to the rules of court is that this was Government policy at the time. There is no legislative or constitutional requirement for it and no statement to the effect that it would be in any way problematic. I instance the fact that much legislation passed by recent Governments and more far-off Governments, including the previous Government, makes changes to the manner in which cases are heard in respect of procedure. Such legislation amounts to public policy decisions and usually contains provisions such as those found in the Civil Liability and Courts Act 2004 which made significant changes to the way in which compensation cases were managed in the courts. Section 9 includes a provision that states:

Nothing in this Act shall be construed as limiting or reducing the power of an authority, having (for the time being) power to make rules regulating the practice and procedure of a court, to—(a) make ... rules.

This legislation came from the Minister of State's Department; much legislation does. The power is given to the Superior Courts Rules Committee by primary legislation. There is nothing in the Constitution that says the rules of court are set by the Superior Courts Rules Committee. The power is given to the committee by this House because it is in the interest of the people who deal regularly with the day-to-day changes in regulation and administration. The power rests with this House. It is practice that large areas have been delegated to the committee, but there is nothing legislatively, constitutionally or otherwise restricting this House from making such changes to the way in which the courts conduct their business. If we make a decision that we want cases to be heard in this way, it is absolutely within our gift.

I wish to respond to some of the other key points raised by other Deputies and the Minister of State. The point about potential variability was raised. I believe that sections 5 and 8 and the possibility for separation of the common and the diverse issues within the case can deal with that. Deputy Harty made the point that people might not be in a position to take separate actions but, as the Minister of State has acknowledged, the model involved here is an opt-in one. Therefore, people would be at liberty to take their own cases individually if they so wished, and that option would be open to them. Deputy Penrose instanced his own Bill, which he intends to progress at some stage. We will engage with suggestions made by Deputies Penrose, Jack Chambers and Harty and other Deputies regarding amendments.

I wish to quote the remarks Mrs. Justice Denham made at the launch of the report. She said:

It is in the State's interest, and in the interest of litigants, to embrace a form of multi-party procedure.

The report does not recommend removing the current private multi-party procedures, the representative action and the test case. Rather it recommends providing an alternative, additional approach. The Report while considering the matter practically is imaginative.

That is a belief I hold. This is fundamentally about access to justice and the better administration of how cases are heard in the courts where there are large categories of people affected by an injustice. It is about giving people the tools to take cases where previously they have been prevented from doing so because of the cost of litigation and representation. The Bill levels the field in their favour, and I hope the Dáil will support it in the vote on Thursday. I ask the Government, in the spirit of that new politics to which I have referred, whether it agrees with the legislation or not, to take the view of the Dáil on board and work with the select committee to improve the legislation, bring it into line with proper legislative procedure and tighten it up.

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