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Joint Committee on Justice and Equality debate -
Wednesday, 21 Feb 2018

General Scheme of the Multi-Party Actions Bill 2017: Discussion

The purpose of today's engagement is to conduct detailed scrutiny of the Multi-Party Actions Bill 2017, a Private Members' Bill sponsored by Deputies Donnchadh Ó Laoghaire and Pearse Doherty. We are joined by Mr. Dave Coleman, solicitor with Coleman Legal Partners, Mr. Eilis Barry and Mr. Paul Joyce from FLAC, and Dr. Joanne Blennerhassett of the Sutherland School of Law, UCD. We are also joined in the Visitors' Gallery by Mr. Paddy Coleman and Ms Kelley Monks from Coleman Legal Partners, and by Ms Caroline Smith and Ms Ali Williams of FLAC. I welcome them all warmly. It is only appropriate that I apologise because the commencement time indicated was a little earlier than we could cope with. We have been talking to our support team about that and we hope the problem will not recur. I hope the coffee was up to standard.

The format of the meeting is that I will first ask Deputy Ó Laoghaire to address the committee on the Bill, and we will then hear opening statements from our witnesses. We will then open up the discussion so members may ask questions and make contributions.

Under the salient rulings of the Chair, members should not comment on, criticise or make charges against a person outside the House or an official by name in such a way as to make him or her identifiable. I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.

I invite Deputy Ó Laoghaire to make his opening statement.

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.

A 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.

Deputy Ó Laoghaire has outlined the contents of the Bill and its importance, and his own openness, as lead sponsor of the Bill, to take amendments from both witnesses and other colleagues across the political divide. I am glad that we are the stage of pre-legislative scrutiny, and I hope that this will proceed throughout the parliamentary process here and that it is not frustrated through the need for money messages or otherwise during its passage.

It is 13 years since the Law Reform Commission's report on multi-party action legislation. It is clear that we are not the only outlier in the European Union, but compared with our peers, we are an outlier in not providing this type of course of action to litigants. I was prompted to look into the issue because of the tracker mortgage scandal, where victim after victim was left to argue and wonder if they had another kind of course of redress through the courts whereby they were able to take on the Goliaths of the financial institutions to get them to address the difficulties and the challenges they faced after having lost so much money as a result of the tracker mortgage scandal. Their own personal assets were put on the line. In those circumstances many wondered if they could have looked at a class action, multi-party type of suit. When we scrutinised that issue, we found that the Law Reform Commission had indeed recommended this back in 2005.

I am delighted that Deputy Ó Laoghaire has taken the time to pen this legislation based on those recommendations at the time and that the Dáil has passed that legislation to this Stage. I look forward to hearing the contributions of the witnesses.

I welcome Deputy Doherty to the Committee on Justice and Equality. I believe it is the first time he has been before this committee in this term. He raised a point about money messages. For the information of the Deputy and other colleagues, we sought the money message for the Multi-Party Actions Bill on 5 December and we have had no response as of this morning.

Ms Eilis Barry

FLAC welcomes, and commend the drafters of, the Multi-Party Actions Bill 2017 and the intention behind it to increase access to justice for vulnerable and disadvantaged individuals. We are also grateful to the Joint Committee on Justice and Equality for giving detailed consideration to this access to justice issue, and we would like to stress that FLAC is very happy to provide any assistance it can to the committee on this and other issues. We have submitted quite a number of detailed documents setting out the work of FLAC and its experience of multi-party actions, especially in the area of the implementation of the social welfare equal treatment directive and the recent collective complaint to the Council of Europe. I do not intend to reiterate what is already before the committee.

While FLAC welcomes the Bill, our biggest concern at the moment is that there is no legal aid for multi-party litigation. That needs to be addressed to make the Bill effective, particularly for people on low incomes or potential claimants whose potential damage may be just too low for a private firm to take on the risk. The Bill clearly envisages that proceedings should be issued, and I welcome the suggestion that it may be possible to amend that to have a register. Even if it was the case that a person could join the proceedings by simply joining the register, that person will still need legal advice as to whether he or she should or should not. It is a critical issue that legal aid and legal advice would be available.

The LRC in its report addressed this issue in annex B with a very simple amendment to the Civil Legal Aid Act which provides that multi-party actions should not be excluded. For the purposes of this oral presentation we have been invited to comment on the Government's criticism of the Bill, as expressed by the Minister of State, and that is what I will do.

It has been suggested that the Bill is technically flawed in that it seeks, inappropriately, to enact as primary legislation a scheme that was intended by the LRC to be in the form of rules of the Superior Courts.

The Superior Court Rules Committee has the power, exercisable with the agreement of the Minister for Justice and Equality, to make and change the rules of the superior courts. It appears that the Law Reform Commission envisaged reform by way of the rules committee rather than primary legislation. However, there is nothing in principle or law to prevent changes from being brought about by primary legislation. We believe it would be constitutionally suspect if the Oireachtas were in some way to be disbarred from introducing legislation to seek to improve access to justice in the absence of the Superior Courts Rules Committee making such rules for whatever reason. Nevertheless, it may be more appropriate to include in the Bill a provision that procedural rules would be adopted to give effect to the provisions of the Bill. It is not necessary to exclude the Superior Courts Rules Committee and the Bill could be amended to provide that the committee would make procedural rules.

We have also been asked to address the issue of tracker mortgages. The overarching point in that regard is that the tracker mortgage scandal was clearly the catalyst for publication of the Bill. Irrespective of whether multi-party actions are an appropriate way to deal with the tracker mortgage issue or whether there is a more efficient redress system available, this does not take from the fact that we do not have formal effective procedures for multi-party litigation. The Bill is a significant improvement and development in that regard. There is no doubt that issues will arise in the future which would benefit from having this legislation in place.

It is not clear that the redress programme in place would achieve the resolution of all tracker mortgage cases, particularly the more egregious cases where repossession proceedings have been brought or family homes repossessed. If the procedure provided for had been in place when the tracker mortgage scandal emerged in 2011-12, it is arguable and certainly possible that some of the issues could have been addressed by now through such litigation.

The Government's statement queried whether multi-party actions were a viable way to deal with tracker mortgage issues. Clearly, there are different types of plaintiff, claim and lender involved and the losses incurred also differ. However, the core issue of overcharging on interest creates a commonality. While multi-party actions may not be the best procedure or even a necessary one for every claim arising from the tracker mortgage scandal, it is difficult to argue that they would not be a suitable vehicle for at least some of the claims.

The Government's statement noted that the report of the Law Reform Commission was relatively old and that it would be appropriate to consider developments that had occurred in the meantime, in particular, at European level and internationally. While FLAC agrees that it is wholly appropriate to consider these developments, none of them suggests the current lack of provision for multi-party actions is in any way justified or should be maintained. Most recently, the EU anti-trust damages directive which relates to damages under national law for breaches of EU competition law makes provision for collective redress. It has also been suggested the matter will be addressed by the President of the High Court in the review of the administration of civil justice. While it is welcome that the President of the High Court will consider this matter as part of the review, we hope his review will go beyond multi-party actions and examine other barriers to access to justice, for example, class actions, standing rules on costs and protective costs and other forms of resolution of matters. It would be unfortunate if the review were, in some way, to inhibit the Oireachtas in legislating on matters related to access to justice.

Some technical issues were raised by the Government about the Bill. FLAC is not overly concerned with a number of them. It is correct that an element of the Law Reform Commission's proposal is admitted, namely, the requirement that any person joining a multi-party scheme agrees at or before the time he or she joins it to the terms of any settlement arrangement. This matter could easily be rectified and I am not sure it is a critical issue.

Concern is also expressed about the designation of a lead solicitor under a Bill and whether this could, in some way, impinge on the right of access to the courts by an individual with a legal representative of his or her choice. It must remembered that the parties are opting into this system which is in no way compulsory and that the High Court judge will have a key role in ensuring the lead case fairly and adequately represents the interests of all those on the register.

A further concern is raised about whether it would be considered safer for any such Bill to apply to new proceedings only. On my reading of the Bill, it is not immediately clear that it purports to apply to existing proceedings. It is important to remember that it would not change substantive rights or even substantive remedies. It is more a case management Bill than one which would change existing rights. Again, that concern is not a critical issue.

The Law Reform Commission has subjected this matter to considerable scrutiny and analysis. It is clear from its report that it considers the proposal to be an alternative rather than a radical one. While the Bill clearly is not the solution to remove all barriers to access to justice, it attempts to deal with some of them. For that reason, FLAC welcomes it.

I thank Ms Barry and invite Mr. Coleman to make his presentation.

Mr. Dave Coleman

While I am happy to make my contribution now, perhaps it might be more beneficial if Dr. Blennerhassett were to speak about the generality of the system and we were to discuss the empirical experience thereafter.

Is Dr. Blennerhassett agreeable to that suggestion?

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 thábhachtach 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 detail 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.

I thank Dr. Blennerhassett for her presentation. I call on Mr. Coleman to commence his presentation. He cannot dither this time and must go for it.

Mr. Dave Coleman

I was not dodging a bullet. There is nothing that has been said in this room today that I disagree with and I will continue on from what has been said.

I am the founding partner of Coleman Legal Partners and I have specialised in group litigation for the past 30 years.

The use of any judicial system by a group of citizens, and their advisers, with common purpose in the absence of formal court rules to guide them necessarily means a journey by all parties, be they plaintiffs or defendants, that is fraught with risk and exposure to risk that often, in practice, precludes large numbers of people, and their rights have been taken from them without ever being vindicated. I do not say that from a subjective point for view. I say it from an empirical point of view as this has been my experience.

I have received a copy of the Bill.

While I apologise for having tracked and changed it, I felt it was a way to show the committee that there may be another way to look at the Bill. While I apologise for the damage I did to it, it was the best way to explain myself.

Later in the Bill, there is provision for a judge to decide on more than one lead case, but that is not stated in the definition of the lead case. The definition refers to a case which may be chosen as representative of the class or group. In so far as it goes, that seems very logical but already at this point the massive disparity between a plaintiff and the defendant in any case has reared its not too pretty head. What one sees is not so much what the lead case is but rather who the lead plaintiff is. That is a massive difference when it comes to the citizen and his or her right of access to justice. A simple answer is that it is the case which best represents the set of circumstances the court is tasked with deciding. That is the simple answer. The practical answer is that the person in the plaintiff case who is the best person in the best position to carry out this case to its ultimate destination must have certain attributes from a practical point of view. I will explain what they are. The plaintiff must be willing to go forward as the lead plaintiff and, in effect, do the heavy lifting on his or her own behalf and on behalf of many thousands of others. In respect of the day-to-day management of the case, he or she must follow absolutely everything. He or she must be up for it and know what to do, including how to do affidavits and know what that means. Ultimately, the plaintiff could have the responsibility of carrying the costs where the value of the case being discussed may run to tens of millions of euro.

I have done these cases and, thankfully, been successful in most of them. However, I can speak to the risks that individuals face in this country when seeking to vindicate their rights. I can speak to the bank cases and the pyrite cases and, by my experience, shed some light for the committee on what this legislation ought to achieve. The circumstances of the lead plaintiff must be such that the facts of his or her case govern those of the group. It is a fact of life that not every case will be ad idem with its next neighbour. One is going to try to distil some basic principles out of all of the cases which are enough to decide the group. There will be a degree of subjectivity, such as the extent of damage etc. on an individual basis. The last circumstance of this person is the one which everyone has spoken about here. That is that he or she must be such that he or she can withstand any and all negative costs orders made against them. It is not just the costs of the case. During the course of the case, it has been my experience that certain judges have made interim costs orders against lead plaintiffs in respect of late filing of papers, etc. One might blame the solicitor for that but when one is running a mass tort, one may have several thousand people to deal with and it is not always possible to get it right according to the timeline the judge sets out.

We have had to deal with interim costs orders against plaintiffs in those circumstances. Something should be done about that. This rule allows any defendant, most of which are large corporations or, indeed, the State, to adopt their first defensive strategy, which is to play the man and not the ball. They will pick the test plaintiff as the man who has the means to pay their costs or a large portion of them should they win. If they succeed in getting him nominated, the defendant can, under the current system, apply to the High Court to have its chosen cases in the group litigation taken. That plaintiff is now on notice and he will worry throughout the case, which gives the defence its first advantage. One has to ask at this point who in his or her right mind would place what could be the result of his or her life's work on the line to incur the massive liability on behalf of others whom they most likely have never met save with the common interest of a loss they blame others for? What solicitor would advise someone to take on that risk? That is a rhetorical question in the sense that the answer highlights immediately the problems any plaintiff and his or her advisers have. In a case I successfully concluded several years ago on behalf of 300 plaintiffs, the defendants paid out an eight-figure sum. I cannot name the case or the parties because of the terms of the settlement. One of the lead plaintiffs was a man of considerable wealth. He joined the case as an ordinary plaintiff and placed himself in harm's way, knowing a loss would cost him many multiples more than the loss he was complaining of in the first instance. Notwithstanding the clarity of the advices as to the nature of an adverse costs result, this man stood his ground. Eventually, he and his fellow plaintiffs were vindicated. To say his belief in justice caused him and me many sleepless nights is an understatement. He remains a friend today.

No one, including me, wants to see the courts system with any legislation enacted to guide it used for rampant litigation which clogs up the arteries of the system in order to vindicate minor rights of individuals. We understand this. This is not what we see as the intention of the legislation. Neither does anyone want to see citizens precluded from availing of the right of access to court for fear of a draconian costs order, which might ultimately be his or her ruin. The job of the legislator is to pick through this issue and assist in any process which treats all protagonists equally. The old costs rule of costs following the event has an exponential effect in multi-party litigation on the single individual who is saddled with the costs of a case taken on behalf of thousands. This was never intended to be the result of that rule. The rule demonstrates the stark difference between the realities of the protagonists where the plaintiff is a minor individual, whose opponent is often a multinational or, indeed, the State.

Similarly, the appointment of one solicitor, or more than one depending on the size of the case, is a thing to be desired. The proper execution of a multi-party action requires action by a solicitor with three attributes. The first is that he or she must have the necessary experience of litigation of this type. The second is that he or she must have the capacity to administer a case which may have thousands of parties. The third is that he or she must have the necessary resources to execute the case from inception to conclusion. The third is interesting and I will speak to it later. I have often seen and met solicitors in smaller firms who are swamped by a case that has grown legs from its initial birth with one client or so. The applicability of the facts to a larger cohort has made that solicitor unable to adequately and properly deal with the numbers involved. Given the adverse nature of a costs order, it may be prudent advice for other solicitors with similar clients in similar situations to wait and see what happens with the lead case. Everybody is now on the ditch. It means the resources are limited and applied to a lead case and there is no cohesive strategy to vindicate the rights of people in the most efficient way. This will compound the lead solicitor's problems if the clients do not come to the case to allow it to be adequately resourced. We will speak to resources later.

The administration of a case is important to all, in particular the clients. There is of course the lead plaintiff about whom we have spoken but everyone who has suffered as a result of a mass loss has the same right as the lead plaintiff. However, they must follow on, which means having to be educated in the progress of the case and in its nuances as the defendants often bring forth information or material which heretofore has not been available to plaintiffs and which can change the nature and style of a case. We will talk about that coming up in the process of discovery later. In deciding an issue, the court will rightly want to know that those affected by a case are suitably informed of its progress. Technology has greatly assisted this administration but individuals in the current system all carry a fear of having to pay their own and others' costs. The majority of queries may have to be dealt with by the solicitor on a one-to-one basis.

People are genuinely scared because of the nature of the current system which involves joint and several liability costs.

After allowing for the first two requirements, namely, experience and capacity, the resource most necessary to execute a case is money. In the multi-party section, there is a reference to the High Court stamp duty of €190 and an Injuries Board application fee of €45. Taken together, this comes to €235 which might not appear like a large sum which would act in any way as a barrier to entry into a case with a larger group.

Recently, outside Leinster House, the wives of serving soldiers protested at the pay and conditions of their partners. Not wishing to enter that debate and the merits of their protest, it is fairly obvious these women did not stand in the manner they did because they had nothing better to do. Rather, like many others in our society, they have been put to the pin of their collar to make ends meet. I mention this group because my firm advises more than 300 ex-soldiers who took and were affected by the anti-malarial drug Lariam. The merits of the case are not for this room but, respectfully, the mathematics are. To ask the wife of a soldier to provide €235 for membership only of a case which has a long journey with both the causation of the case and the personal effects on each individual soldier to be proved is something which ranks well above the day-to-day priorities of this particular cohort.

From a defendant's point of view, the absence of the €235 per case means that this cost is avoided at the end of the case, should it be successful. One does not have to issue proceedings to be part of a multi-party action under this Bill. Instead, one creates the register outside of the court and then joins it. For example, in the case of Lariam, the defendant, being the Department of Defence and the State, will know whether somebody was a member of the Defence Forces and whether they were given the drug. Accordingly, the membership, or otherwise, should not necessarily involve these costs being incurred.

The Injuries Board will not deal with these cases because it cannot do so. The €45 charge is spent finding out something we already know, a point which we have been told in our discussions with the Injuries Board. This is a typical example of how this goes.

If there were 500 people in this cohort, the total saving is €117,500. To my mind, that is a significant saving. The size of this figure in the overall cost of the case may appear small to a defendant. However, that highlights the inequality between plaintiff and defendant. To find €235 can be a lot harder than finding €117,500.

The requirements to fund a case do not stop at the entry point. The cost merely allows for entry. The management and the proving of the case, as well as its execution to its conclusion, can be massive. A typical expert witness in a banking case will cost €50,000 to brief, report, respond to discovery and attend a trial. There may be many expert witnesses. Who will pay them? Will it be the clients, private funders or the solicitors themselves? No expert, be it in a medical negligence or financial matter, will work for nothing. Somebody has to pay him.

We already have shown that not everybody can meet €235. If one has 500 people to run a case, brief counsel, hire people to deal with massive discovery - sometimes one has to hire up to 20 barristers to deal with discovery - one can be faced with a bill of up to €1 million. One can say it is fine with €2,000 per man. However, that €2,000 is a bridge too far for so many people.

This legislation has to be able to the deal with a hybrid of all types of funding, be it that people can opt to fund themselves, partake of finance if it should be beyond them, or the solicitor can deal with the costs. Few solicitors would be in a position to carry these costs but it can be done. The adage of ní neart go cur le chéile comes to mind. It is possible for everybody to come together to do this. However, it is not always the case. What does a lead solicitor do when he knows some of his 500 people have not paid because they simply cannot? Does he tell them they cannot come in? Does he carry the cost himself? Does he not tell the others? These are the practicalities of dealing with these cases.

I have never had a multi-party case - I have run more than 20 of them - where everybody paid up. They did not because they could not. We just had to suck it up. That is no way to deal properly with people's right of access to justice, particularly in this day and age. Normally, it is the poorest who are most affected by these cases, not the richest. Those are the people who need to be minded most, in my respectful view.

Section 4 covers the day-to-day issues concerning the size of the particular cohort. The Bill states it should be an application to the High Court to expand the register. In my respectful submission, there is no need to do that. One can create the register first and then let the solicitors deal between themselves. I am doing a case in France where there are 11,000 people in the cohort. All discussions are not in the courts but between the plaintiff and defendant lawyers, spending hours poring over the list, deciding who is in and who is out. That is the proper way to do it. To have these differences aired in court, when it is quite clear to both parties as trained lawyers that somebody is in or out, is a waste of the court's time. It will certainly clog up the system, a system designed to simplify the process and to make it less expensive.

Section 5 deals with the publication of the existence of the register. During the establishment of the Residential Institutions Redress Board, ads were taken out by the State all over the world for the whole diaspora to see this was happening in the home country. People who had often left for the very same reason the redress board was established had to be contacted and identified. It is to be hoped we will never have the dark time of such a redress system again. I mean that because I was actually involved in the negotiation of the Act itself. There should be a provision in this legislation to allow for the inclusion of the existence of the register in Iris Oifigiúil. In turn, this will notify it to people and it can be picked up by the media and so publicised. Otherwise, the cost falls once again on the plaintiffs to do so because the defendants will not do this.

The adverse costs order is one of the main parts of the Bill which I feel needs to be thought through carefully. There will only be one shot at this and it is incumbent on everybody to understand who the legislation affects. We can start with the most vulnerable in society, wards of court. For example, if a person is responsible for a ward of court and believes those rights have to be vindicated through some loss which has affected this person, he or she has to consider carefully the effect of an adverse costs order against that ward.

If provision has been made, perhaps in a familial setting, to provide for that person, the money that is set aside for the person is at risk if the person is part of a case. That is a huge barrier to entry for anybody who is prudent in their advice to a plaintiff on the basis that an adverse costs order is joint and several in fairness to all. One can also include vulnerable people from a socio-economic perspective in our society. One can show that the people who are most affected are the people who have the liability of the people who cannot pay foisted onto those who can pay.

I have a clear example of those who can pay. Since 2010 many families have struggled in middle class Ireland to get back to a place where there is some element of security in their personal lives. I was approached by a group of 200 people who claim, in my view rightly, that they suffered at the hands of a particular financial institution in a bespoke matter. There was a finite number and the issue was quite clear. I had previously taken a case against another financial institution on the same grounds and won it. This time, however, because it was after 2010 and people had been sharpened by the losses most people suffered in the downturn, they could not find a lead plaintiff among themselves and they would not put themselves forward as party if their improved lot, based on the sacrifices they made in those years, was once again put at risk for a court case. They could not go forward, so they had to go back. In reality they were denied their access. We have great theoretical access to justice here, but the reality of it is completely different. These cases must be funded and people will lose twice if there is an adverse costs judgment - what they put in and what they will have to pay up. On the other side, the defendants might say that is fair, given that they have incurred those expenses in vindicating themselves. However, to take it against one party when the benefit of the case runs to their defence of many cases is incorrect. In my view this Bill should not allow the targeting of rich or richer people with the expense of those who cannot afford to pay their way but yet have the equal right of access to the courts.

We will have to bring it to the concluding points. Some of what else you might wish to say might come up during the questions.

Mr. Dave Coleman

I accept that. I will conclude by welcoming the invitation to appear before the committee. It is important to have a proper system of justice for mass tort in this country, and that is not because I believe we need a lawyer fest. I am doing a case in South Africa for 25,000 miners and we have waived our fee. It is not about the lawyers but about the citizens in the State and the fact that they are denied access to justice even though we pride ourselves on our Constitution.

I appreciate the detail that has been shared with us in each of the contributions this morning and in the supporting documents. I call Deputy O'Callaghan.

I thank the witnesses for attending the meeting. I very much enjoyed their presentations. We had an opportunity to debate this in the Dáil on Second Stage and on that occasion Fianna Fáil indicated it would support the Bill. It is worthwhile legislation. From my point of view and knowledge of the courts, it is refreshing to have a discussion about facilitating access to the courts. On many occasions when we discuss legislation it is about restricting access through reducing limitation periods or restricting people's access to the courts by sending them to some statutory body. It is important that people recognise that access to the courts is a good thing. People must be facilitated in gaining access to the courts. There is a big problem in this country in terms of certain people feeling excluded from the system because of its expense. We must take steps to ensure that this does not happen.

The core advantage of this legislation, and I will be interested to hear Mr. Coleman's comments on this, is that multi-party actions will have the effect of reducing costs in the long run, not just the legal costs of the plaintiff but also the legal costs of the defendant being sued. Consider, for example, some of the major actions where the State has been wrong, whether it was the infection of women with contaminated blood products or the Army deafness cases. The State spent a fortune defending those claims. Does Mr. Coleman think that the cost to the State even of the legal fees would have been reduced had there been a multi-party action scenario for those situations?

Mr. Dave Coleman

There are two parts to it. Let us remove the word "State" and replace it with "defendant". In my experience, the multi-party action in the limited form we have it at present is one where one signs up the plaintiffs, they will sign up to the agreed questions between the plaintiffs and the defendants that are given to the court, and in so answering that binds the group. That is far more efficient than having 300 or 500 individual statements of claim and having to go through all the procedures before the court for each one, which creates a massive amount of work and effort to no avail because everybody in the room will know that the points to be decided are being decided in the main cases and that all other cases should be, in effect, stood up. I agree that considerable savings can be made by having this system.

When it comes to the State, and I hope I am not overstepping the mark, sometimes there is not much commerciality in dealing with these problems. In a typical medical negligence case the apology is given at the very end. In many other areas where the State is being sued through one of its arms, the circle the wagons opinion prevails until it has to give up. It is the wrong way. In many states in America, for example, the doctors apologise openly at the outset. It has really reduced litigation.

Ms Barry made the valid point that much of the problem for people in this country is having the resources to take an action such as the ones I have mentioned. It is not simply that one must pay lawyers, one must also pay scientists and doctors to get reports to support the claim. One of the concerns people might have about multi-party actions is that it could become a little like America where there are arrangements whereby a percentage of the pot is taken by the lawyers. Does she think there is potential for that here or does she have any concerns about that?

Ms Eilis Barry

I do not. The Bill is quite a modest proposal. It is more about case management. It is not providing for big class actions such as take place in the United States, where one has to opt out rather than opt in. This is very much an opt in proposal so I do not see it as a floodgates scenario.

Dr. Joanne Blennerhassett

If I might intervene in response to Deputy O'Callaghan, in America cases are often funded on the basis of contingency fees so the lawyer gets a stake in the outcome. That is illegal in Ireland. There is no risk of that happening here.

If any of the witnesses wishes to offer further elaboration on any response, please do not hesitate to do so.

Mr. Dave Coleman

To follow up on what Deputy O'Callaghan said, I did a case recently on behalf of 600 plaintiffs against a non-Irish bank. The defendants asked me why I was taking the case. I was then sued personally in champerty. I had to retain lawyers and we had to fight that case. The main case was stood up. We fought it and won it.

I got my costs. We then came back and they settled at the last minute in the other case. The defendant will play the man and not the ball every time and the more one puts in the Bill to allow that the ordinary citizen in the street who has from zero to limitless wealth is protected, the more one will achieve for the cohort of people which is the State.

Mr. Paul Joyce

On Deputy O'Callaghan's point about the cost to the State, a good illustration of that is the equal treatment social welfare arrears case where, ultimately, after several cases and a number of plaintiffs, the State ended up paying out a total of £300 million in costs and redress for 69,000 women. If there had been an acceptance by the State that it was in breach of the terms of the directive in the first place, that cost would have been prevented.

That is a valid point. Many of these cases should not be cases. If persons who are doing a wrong or committing a tort faced up to their responsibility and admitted liability earlier, we would not have to go through such lengthy processes and it would just be an issue about quantum where they would require legal assistance. I thank Mr. Joyce.

In regard to those questions, I thank all our guests.

I thank the witnesses for the comprehensive analysis they submitted to us and for their presentation. As Deputy O'Callaghan said, this is about a rebalancing of access to justice that we currently see in the Irish context where people have been prohibited by the cost and everything else.

In the evidence she presented, Dr. Blennerhassett stated Ireland is one of eight member states that does not have the possibility to collectively claim. Based on the ones that have, do Dr. Blennerhassett or Mr. Coleman want to outline any European model that Ireland should embrace?

Dr. Joanne Blennerhassett

Each of the legal systems of the member states are so different and in terms of harmonisation, it is difficult to have a one-size-fits-all approach. That is where the European Commission has tried to legislate. By giving guidelines, it has tried to create a blueprint. Each jurisdiction has its own nuances that it needs to deal with and its own political forces.

We can learn a lot by looking at the United Kingdom - the use of the group litigation order in England and Wales - and also from the safeguards that the European Commission recommended prohibiting contingency fees and protecting against abuse so that Ireland will not become a jurisdiction, like the United States, where there is ambulance chasing and there are incentivised class actions. We can learn lessons from the United Kingdom and other common law jurisdiction so that we are comparing like with like.

Mr. Dave Coleman

I would agree. The codified system in Europe is quite different in many individual jurisdictions and to apply something that may be available in Europe to a common law jurisdiction is extremely difficult.

To play the devil's advocate - I want to be clear I support Deputy Ó Laoghaire's legislation - we received a submission from Christopher Hodges, professor of justice systems at the University of Oxford. Professor Hodges has said that collective litigation is an outdated mechanism. He refers to 2018 research. The study collected many case studies on the different collective redress mechanism from across the EU and the results were evaluated against objective criteria. The study found that new technology mechanisms of regulatory redress and consumer ombudsmen were clearly better than the old technology mechanism of collective litigation. Have any of the witnesses explored that research? Maybe they want to comment on it.

Dr. Joanne Blennerhassett

I have conferred with Professor Hodges on this. I believe there are emerging new technologies and that is why I say that we need a suite of responses potentially for dealing with collective redress ranging from ombudsmen to regulatory redress, alternative dispute resolution, ADR, and the courts. We do not need more litigation but the litigation is happening and that is where the role of the courts is important.

At present, we do not have any other mechanisms. We do not have enough of those other techniques. Until we have, we certainly need a multi-party action. That will work as one of the tools in the toolkit to deal with collective redress.

I thank Dr. Blennerhassett. I apologise but myself and Deputy O'Callaghan must be at another engagement at 11.30 a.m. and will have to go. I thank the witnesses for coming in.

I thank both Deputies for their input.

It is useful. It is very much part of a bigger picture. We would come across regularly some of the issues the witnesses touched on, for example, ordinary people who have clearly been wronged but cannot get a remedy for that wrong, be it that they have not the financial wherewithal to take a case or whatever.

I am struck by the comments which I agree with about collective redress. It is not only about access to the courts, particularly where the State is responsible as the defendant. There has to be a change in culture. This circling of the wagons most definitely exists. Not only does this put pressure on people but there are tremendous amounts of money involved. Looking at the detail on Army deafness, nearly €300 million was paid out. Some €100 million of that went on legal costs, not to mind what people were put through. The Lariam example is teed up for that. The present situation suggests we will have tortuous one-by-one litigation - it has already started - which does not do anybody any good.

I agree with Ms Barry's point. This is a modest Bill. It will leave many matters unaddressed. However, it is an important opportunity to discuss some of the bigger issues and it is better than what is there. From that point of view, even from the point of view of efficient court management, it is probably better.

I do not have a large number of questions. The biggest gap in the Bill is the issue of champerty and the lack of provision in it for third party funding. I would like to know the panel's opinion on that. The prohibition in Ireland is out of kilter with nearly everywhere else in the world. The Supreme Court upheld it in May 2017. Ms Justice Denham stated it should be perhaps looked at as a separate law. This is where a person not related cannot fund a case. It has come up on many occasions with persons with whom we have been dealing. I refer to groups of people, some of whom are involved. Those who are not might be family members. They might want to use GoFundMe online where many people throw in €20 because they see an injustice and they want to help, but they cannot do that. The Government has stated this has to be done in separate legislation and one cannot include it in this. If we do not address that, we will not advance these issues. What do the witnesses think?

We will start with Ms Barry and work our way through the panel, if that is okay.

Ms Eilis Barry

It is a real issue but, I suppose, from FLAC's perspective, the provision of legal aid is an even bigger one. Some people may be able to access funding but there may be people who are not in a position to access funding from any group. To us, the more fundamental issue would be a review of the legal aid scheme. At present, the scheme's means test is extremely restrictive. There are whole areas of law excluded. It will not fund test cases. Isolating out champerty and maintenance to be looked at, and not looking at legal aid, would be a real shame. As Dr. Blennerhassett stated earlier, one needs a holistic solution to it. I would have some reservations about picking champerty and maintenance and not looking at legal aid at the same time.

It is only because it is was not highlighted by anybody. It is taken as a given that we would support the extension of free legal aid but these are not mutually exclusive.

Would Mr. Joyce or Mr. Coleman like to add anything to that?

Mr. Dave Coleman

Returning to the example given earlier about the expense of the pyrite case, I had 300 of those 550 plaintiffs and another company had 250. The cost of the case was €55 million. The insurance cover was €100 million. There was €45 million left to remedy the homes. These were not costs that I received. These were the costs incurred between the quarry and the builder - that was it. They took up years of court time. In the end, it was through the good offices of our firm and the other firm that we negotiated a walk-away basis for the plaintiffs on the basis that there was a fix for their homes. The system, as it is, is wrong. It is inefficient and it is incorrect.

Second, the judge hearing that case, and the members might consider this in this Bill, asked for an expert to be appointed to help him to understand the vastly technical issues. The same applies when one comes to medical device cases and blood-brain barrier drugs cases.

A judge may need assistance and the judge should have the statutory power to call for it.

Does Dr. Blennerhassett have anything to add?

Dr. Joanne Blennerhassett

Nothing except that the entire area of funding is crucial to how multi-party action procedure would work.

Could it fit in as part of this Bill?

Mr. Dave Coleman

It must.

I believe it must be put in as well. We could absolutely include the bits dealing with free legal aid as well.

Mr. Dave Coleman

Legal aid follows it, really. The champerty should go. That is not because I got sued and I am not afraid of that. I am afraid that somebody else might not wish to do something in the interests of justice because of a fear of personal retribution. It is the wrong way to approach this and it must be dealt with. I am not part of the problem and I hope I am part of a solution.

In response to Deputy Ó Laoghaire's Bill, the Government indicated it had been jolted and it would ask Judge Peter Kelly to have a look at this as part of his overall review. We would all be more encouraged from today, saying that is clearly inadequate. What is the story there with the idea of it being amended through court rules etc.?

Mr. Dave Coleman

With respect to the Judiciary and court rules, many years have passed since the Law Reform Commission of Ireland made the report and nothing has been done. I have seen no basis on which anything will be done. It may as well be put into a committee and we can come back in five years, if we are all still here. The impetus is now and the committee should stick with the process. I will certainly help, if we can, and we would be quite happy to give time and effort to try to help. This is a good thing and it should be done.

Mr. Paul Joyce

On that point, the Law Reform Commission of Ireland's report in 2005 does not seem to explain why it suggested an extra order be added to the rules of the superior courts rather than a legislative approach being taken. Our view is that this should be enshrined in legislation and then have detailed rules of court. To introduce a multi-party action system just by rules of the court may even be constitutionally dubious in the first place.

Will the witnesses provide some small elaboration on the rule relating to champerty?

Mr. Dave Coleman

It stems from the Middle Ages. There are two rules, which are champerty and maintenance. Perhaps the professor should be giving the explanation?

Dr. Joanne Blennerhassett

Mr. Coleman has started now so he may continue.

Mr. Dave Coleman

The main one is champerty where a party partakes in an action with a personal gain in mind. For example, if there is a solicitor-client fee in a multi-party action where we are precluded from mentioning percentages but there is a €10,000 reward, there may be a fee between the solicitor and client of €1,000. In some eyes, that is deemed to be having a personal interest in the case, as opposed to a legal interest in the case, but they cannot be separated. One is entitled to charge a solicitor-client fee under the rules of court. Once again, it is in the toolbox of a defendant to play the man and not the ball.

I thank the witness. I can add a new word to the lexicon. I was thinking of the analogy with the judge. We need somebody sitting beside us to provide us with an explanation.

I thank everybody for their contribution and the meeting has been very educational. I have much to learn but I find it very interesting. I have spent much time before the courts in the past ten or 15 years. I know many people in every county in Ireland and because of my background an incredible number of people have contacted me about issues relating to today's discussion. I am conscious that the majority of people who ran into problems, particularly with the large financial institutions, had no money left and it was very hard for them to get justice. The general feeling is that in the Commercial Court, the financial institutions win 10-0 every day. People feel there is no access to justice because they cannot afford it. It is a major problem. This could certainly help in some way.

Mr. Coleman mentioned the circling of the wagons by the State and we see that in many different areas in here. Aside from the tendency to circle the wagons and take up that defensive position, much like the Health Service Executive and other State institutions do when challenged, why is the Government so opposed to doing something about this? The witnesses mentioned champerty. In Ireland the rules around it come from legislation from 1634. The British and Welsh got rid of it in 1967.

Mr. Dave Coleman

Yes, it was decriminalised then.

What planet are we living on? Why is the Government so afraid of moving on and dealing with this in a healthy manner?

Who will start on that?

Mr. Dave Coleman

I will. It is quite clear that some of the finest brains in this country are working within Departments and they are very knowledgeable in all areas of life. They are also very knowledgeable in mathematics. Respectfully, I believe that before any large tort - the Lariam case, for example - can be dealt with, the gross cost to the Exchequer would be weighed up and the net cost of defending it would be weighed as well. It would be deemed more prudent to run the case up the flagpole and see what happens in trying to avoid the bus; the other option is to get hit by it. That seems to be how this is dealt with in the State. There is a very hard-headed approach taken to these matters.

We can look at calls for public and judicial inquiries into various matters affecting people. I am reminded of the recent request to open the Stardust matter again. The people who made the request do not do so for compensation or to run up legal bills. They are trying to vindicate a right. However, the vindication of that right could lead to an additional expense or exposure so it is quite clear it is shut down at a very early stage. From an outsider's perspective looking in, that is how I see it. Of course, it is not just the case with the Stardust case but in many other areas.

Ms Eilis Barry

I attended the annual Law Reform Commission conference last year and the issue of the report arose. Senator Michael McDowell spoke at the conference and in response to questions as to why the report had not been implemented - he was either Minister or Attorney General at the time - he said he was against implementing it as he saw it leading to class actions against the State. He qualified that on the basis that the banks would now be the potential defendants and it might be possible to look at it again. The possible rationale is to prevent claims being taken against the State or at least reduce claims against the State.

Perhaps Dr. Blennerhassett's secondment outside the jurisdiction gives her a pass on this matter.

Dr. Joanne Blennerhassett

I agree with everything that has been said by the panel. There is a fear, to use a cliché, of opening the floodgates. The reality is the litigation and harm is happening. There are compensation tribunals etc., and their costs mean they are even more inefficient. I fundamentally disagree that there will be a potentially greater cost to the Exchequer. We must face the reality in a more manageable way.

I had better not add my personal comments.

The Deputy may have private consultations later.

The Government position has been to allow financial institutions do as they wish right across the board in dealing with the people in trouble with them.

This concerns the manner in which repossessions are dealt with, the tracker mortgages issue and people going out of business. A poor attempt was made to work things through and it just does not make sense. A bank sold apartments of mine for €100,000 but they are now worth €400,000. The bank would have got every penny back if it had worked with me. It is just nuts. The State has to change its position and it should serve the people before these institutions. The people of Ireland have been poorly served throughout the process. We live and learn.

I did not note a question. It was more like a statement. Would someone like to address it, however?

Mr. Paul Joyce

On the mortgage arrears situation, it is estimated that at present there are approximately 12,000 to 14,000 repossession cases involving principal dwelling houses and family homes before certain courts around the country. In practice, however, there is no civil legal aid to represent defendant borrowers in those cases. The Abhaile scheme is a start in terms of people getting legal advice and vouchers to access the advice of personal insolvency practitioners. There has been a lot of talk about strategic default and people not responding to proceedings or engaging and so on but the simple fact of the matter is that most people go unrepresented or are expected to turn up in a county registrar's court on their own to fight their corner. Ten years after the bust that, in and of itself, is a ridiculous situation. That is a broader point.

On the point made earlier, there is a tendency to say that we do not want to lawyer up the system but sometimes that leads to people's basic right of access to the courts being infringed in some way. We have a tendency to move to alternative dispute resolution for nearly everything. Employment, social welfare, and landlord and tenant disputes are mostly dealt with outside the courts and, therefore, civil legal aid is, by and large, not available.

Mr. Dave Coleman

I have two observations to make on mortgage arrears and eviction cases before the courts. First, if a case was to be a lead case of a class of people so affected, each individual institution could be named because they have a common mortgage. Were a case to be taken, it could have a class value of a non-pecuniary turnout in the end. In other words, if one were to succeed, X number of people with that institution would not be excluded or removed from their homes. It therefore does have a value other than the monetary compensation. We did not speak to that here today but it is true that more than just monetary compensation can be achieved by stopping something. I know there is a precedent value in the common law system as it currently stands which has a limited effect also. To put it together by way of an adequately resourced lead case on a class principle gives a better chance of achieving something before the courts than that of the hard pressed man with a €100,000 apartment who owes €300,000.

Ms Eilis Barry

On the mortgage arrears issue, there is a commitment in the programme for Government to set up a specialist court to deal with the issue but that has not been given effect yet. That would be an important and urgent matter to bring about at this stage.

I thank Deputy Wallace. We are coming to a close. Would Deputy Ó Laoghaire like to avail of the opportunity to do a little wind-up or summary?

I will, but I will ask one or two questions first.

That is fine.

In the first instance, there has been a fair bit of discussion on the issue of costs and Dr. Blennerhassett's submission, in particular, outlined some of the obstacles that exist in terms of costs following the event. We then had a discussion on the issue of champerty. Apart from the issue of legal aid, which is difficult for an Opposition party to affect for procedural reasons, etc., what should this legislation include to deal with the issue of costs? How complex would it be to legislate around the prohibition of champerty? Should we consider it?

Dr. Joanne Blennerhassett

Many changes need to be made in terms of costs in general. Allowing third party funding would open up the playing field to alleviate some of the difficulties and inequalities caused by costs. I would start with that.

Mr. Dave Coleman

There are two types of costs. There are the costs in funding the case and the costs incurred if one loses the case. The third party funding costs run to the establishment and execution of the case and the adverse costs are the costs the plaintiffs are exposed to in the event of a successful defence by the defendants. I agree that there should be third party funding. It should be very much a matter between the plaintiffs and their funders as to what the relationship is and how it survives the court system. In other words, there will be commercial terms in any third party funding and we should not try to legislate as to what that is as it will be a matter of actuarial assessment of risk more than anything else.

The second part of the costs issue is the adverse costs order. In the Bill I marked up, I removed the word "joint". The judge would only be able to make a several costs order against each of the participants in the case. This would greatly reduce the risk and increase the appealability of the legislation to the ordinary person. I would ask that the costs would be split out and that funding of third party actions would be allowed. I would also ask that the person with means would be protected from his or her fellow defendants if there is a loss because their loss falls on his or her shoulders also. People have to be protected too.

Mr. Paul Joyce

Section 9 needs a lot of work and reworking for the reasons set out by Mr. Coleman as an experienced litigator in group actions.

On the second part of the question which relates more to the cost of funding the case, do the witnesses have a view on the complexity of legislating for third party funding? What would be involved in it?

Mr. Dave Coleman

Dr. Blennerhassett referred to the English experience where they have invented that wheel. We could borrow a lot from their common law system, ours being the same, and use what they have achieved. Its group litigation order system works and allows for third party funding. I would prefer to see our own system established here for multiparty actions, but we can hinge off on the third party funding.

To show the value of third party funding, last week some £300 million of private funding was raised in England for two cases that have been taken in the English jurisdiction. One is against truck manufacturers for rigging the price of trucks. It will have European applicability although it will be fully funded and fought in England. There are so many companies resident in this jurisdiction for their own reasons and the proper jurisdiction is where they reside. They claim residence here. Therefore, a lot more litigation could be taken here and, as in Hong Kong, London and other jurisdictions, a lot of growth in the economy as a result. It is not a negative thing.

Ms Eilis Barry

The issue of costs is really complex and not just in terms of multiparty actions but generally. In FLAC's experience, costs are a huge disincentive to individuals bringing litigation of any kind. The courts have some discretion at the moment in awarding costs and perhaps that needs to be examined. A particular example would be the possibility of not awarding costs if the case is in the public interest or is a public interest-type matter.

That could be looked at. Limiting the costs - having some sort of protective costs order - is another idea. It is a complex issue. Separating multi-party actions from the issue of costs generally is problematic as well.

There was reference in the FLAC submission and in Dr. Blennerhassett's submission regarding settlement. I accept that this area probably needs further consideration. In the FLAC submission, a distinction is made between what is in the Bill and what the Government responded to but that is between the terms upon which a settlement would be accepted or rejected. That is between the people taking the case and what was characterised as the terms of any settlement, which is slightly different. Dr. Blennerhassett also identified the fact that there will inevitably be tensions and different expectations or demands within a group so it may be necessary for a judge or regulator to approve a settlement. I just want to get a comment from one of the witnesses on the best way to address the issue of settlement and agreement or non-agreement between the persons taking an action.

Dr. Joanne Blennerhassett

I would have an independent third party - ideally, a judge or regulator - who can look out for the interests of the group as whole, avoid those tensions and, in a sense, arbitrate to agree the settlement.

When Dr. Blennerhassett refers to a regulator, does she have an existing regulator in mind?

Dr. Joanne Blennerhassett

Not at the moment. In the absence of a regulator who can fulfil that role, I think it would have to be a judge.

Mr. Dave Coleman

I handled a case in the north east recently involving a multiple assault. A total of 112 people were in the cohort. An offer of settlement was reached. As a result of that, each person had to sign up to it. Of course, some people were recalcitrant and reluctant. However, we agreed with the other side that there would be a 95% uptake and that would allow for it to be put before the court. One can imagine when one must negotiate 95% of one's cohort. Similarly, in all the other cases, in order to settle a case because one is not settling for full value, one is settling to de-risk a case because one will not always win 100%, one must take into account the risks the case faces before the law as it is. We have agreed these "as you go" ways. I do not think it is really acceptable to have that type of system in place if one is going to legislate for multi-party actions. There must be a more structured method of dealing with this even if one must enshrine it in legislation that once certain criteria are followed, the case is deemed to be settled. We could speak to that probably on the basis of other types of issues. For example, if 95% of the plaintiffs for whom I act want to settle, what happens to the other 5%? Do I act for them and continue? Clearly, I cannot do so if I have recommended a settlement. They are almost in effect cast out other than for the settlement that has been foisted upon them. It does create quite an issue and a tension with people who will, ultimately, blame their lawyer when, in fact, one is trying to look for the common good and is doing perhaps what a judge would rule if appointed to do so - not the judge hearing the case or creating the register but an application to another judge to hear the pros and cons of the settlement and not the case.

Do either Ms Barry or Mr. Joyce wish to add anything?

Mr. Paul Joyce

The Law Reform Commission's report seemed to distinguish between a case where an individual might wish to settle and the group settlement. Where an individual might wish to settle, the report seemed to propose that litigants could only remove themselves from the register after the filing of the defence with the authorisation of the court. In the discussion, there seems to be a sense that the lead case might be cherry picked and settled and that might undermine the multi-party action. Regarding the terms upon which a settlement would be accepted as opposed to the terms of any settlement arrangement, the Minister of State's contributions seem to confuse. Regarding the suggestion that one should buy into the exact terms on which one might settle a case as opposed to the procedures for a group settlement of the case, there is a difference between the terms upon which a settlement would be accepted and the terms of any settlement arrangement.

In a general sense, would Mr. Joyce agree that once all that is provided for there may ultimately be a need for an independent adjudicator, such as a judge, to make a settlement?

Mr. Paul Joyce

In lieu of the authorisation of the court, I think Dr. Blennerhassett's suggestion that an individual might objectively assess that is a good one.

Mr. Dave Coleman

If somebody leaves a case, the defendants have a right to apply for the costs incurred against that plaintiff up to the date they leave the case. This legislation should not allow such an application to be made until after the resolution of the case. This is important because the sheriff has gone to homes of clients of mine who for their own personal reasons have had to desist in a case. It has had nothing to do with their belief in the merits of the case. They have desisted for personal reasons and have been faced with sheriffs looking for €700 or whatever the figure was at the time. It is small money but it is very embarrassing and affects credit ratings. It is something that should be enshrined in the legislation.

There is a good deal of discussion in the Law Reform Commission paper on what is described as splintering where there are issues that are slightly at variance from the main common issue so that there may be a number of people who have side categories of issues. They still have the common category but there are some differences with some of the lead cases. My initial view in terms of our legislation is that this is adequately dealt with because sections 5 and 8 provide for directions given by the judge. Do we need to provide more specifically for instances in which cases would splinter and subdivide?

Ms Eilis Barry

That might be a matter for the rules of the superior court to have regard to, which was my earlier point that if the Act could provide that, the rules committee would devise procedure relating to procedural rules to deal with issues such as that.

Dr. Joanne Blennerhassett

The Law Reform Commission referred to the English and Welsh practice of the group litigation order. It is carried out by the courts service but the Law Reform Commission also mentioned that a single representative would deal with the generic issue. The commission says this is an essential feature of the procedure to avoid duplication but that a separate legal representative could be responsible for discrete issues within it - either a subgroup or at an individual level - so, again, we could learn from the English and Welsh practice.

Mr. Dave Coleman

A practical example might be the vaginal mesh cases where the meshes themselves are the subject of litigation in the US and now in Europe, including Ireland. However, upon examination, sometimes the installation of the mesh is deemed to be negligent so one now has thrown up a second but personal and discrete issue in each case. It is how one can proceed with the main issue and allow for another forum or the adjournment of a second issue with no prejudice to allow the first issue to be decided and then the second issue on its merits.

It was the subject of recent address here in the audiovisual room.

Those are my questions. To sum up, I am very grateful to my fellow Deputies for their contributions and to our guests in particular for giving us their time. It has been very insightful. There has been a great level of detail. There is probably a great deal more to tease out but we are certainly an awful lot wiser. There is a great deal more to be done in this institution and this committee must keep up the pressure.

One of the main obstacles to Private Members' Bills is the requirement that the Government provide a money message. We will have to keep continual pressure on in that regard to ensure that this Bill advances through Committee Stage and beyond. Unfortunately, it is not simply the case that this Bill will continue in train. A good deal of pressure must be applied. However, I am optimistic following the comments of fellow Deputies and I hope that we can advance this Bill further without too much delay.

Fundamentally, this is about access to justice and the better administration of cases. It is about giving people the tools to take cases where previously they had been prevented from doing so because of the cost of litigation and representation. On Second Stage, I quoted the comments of the former Chief Justice, Susan Denham, on the launch of the Law Reform Commission paper, when she said that the law was too expensive, too slow and too unequal. I believe this to be the case, but I also believe that the introduction of a route of action such as envisaged in this Bill can make a significant difference in that regard. I look forward to engaging with Deputies and experts on an ongoing basis to advance the Bill further.

I thank Deputy Ó Laoghaire. Would Deputy Pearse Doherty like to add anything?

Our guests have taken time out. Is there anything that they would like to add to what they have already put on the record? Dr. Blennerhassett has travelled a significant distance to be with us and we are grateful to her for that. Is there anything she would like to add?

Dr. Joanne Blennerhassett

No. I was delighted to attend. If I can provide any assistance with this work, I would be happy to do so.

I thank Dr. Blennerhassett for taking the time to be with us. Does Mr. Coleman wish to add something?

Mr. Dave Coleman

I thank the committee for the opportunity. If I can be of help, members should please ask.

Our thanks to Coleman Legal Partners. What of Mr. Joyce and Ms Barry from FLAC?

Ms Eilis Barry

FLAC would be happy to be of any assistance to this committee on issues of access to justice.

On behalf of the committee, I thank all of our witnesses for joining us and for addressing us on this important legislation. We wish Deputies Ó Laoghaire and Pearse Doherty well with progressing the Bill. We hope that the Government will indeed advise that a money message is not required and we will be able to set a date for Committee Stage. That would be the ideal.

The committee will prepare a report, which we will present to the Minister. Is that agreed? Agreed. I thank my colleagues for participating this morning. We will adjourn until 9 a.m. on Wednesday, 28 February when we will meet the Garda Síochána Ombudsman Commission.

The joint committee adjourned at 11.55 a.m. until 9 a.m. on Wednesday, 28 February 2018.
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