The Multi-Party Actions Bill 2017 (the “2017 Bill”) was introduced on 9 November 2017 with the aim of reducing the cost of litigation, providing greater access to the courts and allowing the resources of the Courts to be put to better use.
The 2017 Bill was a direct response to the recent tracker mortgage scandal but has implications far beyond this with the possibility, if enacted, of transforming the way medical negligence cases are currently litigated.
Multi-party actions, also known as class action law suits, are not currently an option under Ireland’s legal system. The legislation, if passed, would allow for an individual plaintiff who shares common issues as to law or fact with a larger group to litigate the action on behalf of a larger group.
The 2017 Bill sets out the procedure of proposed multi-party actions and relies heavily on the recommendations of the Law Reform Commission’s Paper on the subject in this regard.
Mechanics of the 2017 Bill
Under the 2017 Bill, a potential litigant must first identify whether there already exists a previously certified multi-party action relevant to their application which will be facilitated through consultation with the Courts Service. If no such multi-party action exists then the litigant may bring a motion seeking certification before the President of the High Court and the President of the High Court will then nominate a judge to deal with the certification and all subsequent matters arising in the multi-party action.
The nominated judge, in light of the common or related issues of fact or law arising, will have regard to the following in deciding whether to certify proceedings:
- Whether there are or is likely to be multiple cases giving rise to multi-party action issues; and
- Whether a multi-party action offers an appropriate, fair and efficient procedure for the resolution of multi-party actions.
Where a multi-party action is ultimately certified the court will issue a multi-party order which will:
- Establish a register where all the parties involved are recorded;
- Specify the multi-party issues which are likely to arise;
- Specify the criteria for entry onto the register; and
- Specify an expiry date for entry onto the register.
This order may include directions on the publication of the multi-party action, the referral of relevant cases to the judge for determination and may also specify that after a certain date no party may be removed from the register without the permission of the judge. The judge can give directions to assist the fair, efficient and appropriate resolution of the action.
To be entered on the register, a party must first issue proceedings and then apply to the nominated judge. After the expiry of the date for joining the register, the parties must then endeavour to agree the appointment of a lead solicitor, of which there can be more than one. If the parties fail to agree or the judge fails to approve the lead solicitor, the judge will hear submissions from the different parties.
The judge will direct that a lead case which fairly and adequately represent the interests of all those on the register should be selected by way of a case conference.
Unless ordered otherwise, any judgment given in the lead case will be binding on all proceedings on the register at that time and the extent to which the judgment is binding on proceedings subsequently entered on to the register will be at the discretion of the judge. The costs of the action will be divided equally between everyone on the register and the members of the register will be jointly and severally liable for costs.
Currently multi-party litigation occurs by way of ‘representative actions’ and ‘test cases’. The strict requirements of representative actions means they are rarely used and will typically arise only where the class either has a pre-existing relationship with the main party or where the class is relatively small.
As a result, test cases are the preferred method of multi-party litigation in Ireland. The court, using its inherent jurisdiction and the doctrine of precedent, will determine a case that becomes the benchmark against which all other similar cases are measured. A test case suffers from the inherent flaw that it is adjudicated exclusively on its own merits and without regard to the broader class. Furthermore, a test case does not avoid the need for each subsequent plaintiff to file their action which is then processed by the courts in the customary way.
The European Commission published a Recommendation in 2013 on collective redress, inviting Member States to adopt collective redress mechanisms for both injunctive and compensatory relief for breaches of EU law rights which follow a set of basic principles. Whilst not binding it is indicative of the future direction in which Brussels would like Member States to move.
Potential of 2017 Bill
The potential impact of the 2017 Bill on the conduct of medical negligence cases is clear. The current provision for multi-party actions under Irish law does not facilitate the bringing of larger-scale actions by groups of individuals who allege that they have suffered similar injuries at the hands of a single potential defendant (or group of defendants). The introduction of the 2017 Bill would give an option to litigants to use the power of the collective to take otherwise unfeasible cases against participants in the healthcare sector.
A particular example of the potential use of the 2017 Bill in a medical context is the recent suite of cases regarding allegedly defective hip implants. Indeed, these cases were referred to in the Oireachtas debates on the 2017 Bill late last year, indicating the envisaged application of the 2017 Bill to such cases.
Mr. Justice Kevin Cross, as far back as 2015, urged the parties to the litigation to find innovative ways to resolve the disputes in an efficient and effective manner. The overriding goal was that, in the interests of justice for everybody, but particularly for those suing in relation to alleged defective implants, the matter could be resolved quickly.
It remains to be seen whether the 2017 Bill, currently at second stage, will receive cross party political support but what is clear is that without reform the current system will do nothing to help an overheating court system and the public’s desire to see easier access to the courts, in the healthcare sphere or otherwise.