The recent tracker mortgage scandal has focused the Irish Government's attention on the status of class actions in Ireland. In November 2017, two Sinn Féin TDs introduced the Multi-Party Actions Bill 2017 (Bill) in an attempt to change how the courts deal with cases where large categories of people are affected by common issues of fact or law. The Bill aims to reduce the costs of litigation, make better use of court resources and improve access to the courts in these cases. The Bill sets out the procedure for bringing a multi-party action and includes many of the recommendations made in the 2005 Law Reform Commission Paper on multi-party litigation.
What is a multi-party action?
Proceedings already issued, which involve a number of parties, whether as plaintiffs or defendants and which have common or related issues of fact or law, can be certified as a multi-party action and proceed in accordance with the proposed legislation.
Before applying for certification, the multi-party action applicant must check with the Irish Courts Service whether an applicable multi-party action has already been certified. If not then the applicant can bring a motion for certification to the President of the High Court. The President will nominate a judge to deal with the application and if the proceedings are certified, that judge will preside over the multi-party action that follows.
When deciding whether proceedings should be certified, the nominated judge will consider, in light of the common issues of law or fact, whether:
- there are, or are likely to be, a number of cases giving rise to the multi-party issues
- the procedure is appropriate, fair and efficient for the resolution of the multi-party issues
If certified, the nominated judge will make a multi-party action order which will:
- establish a register onto which the parties involved can be entered
- specify the multi-party issues
- specify the criteria for entry onto the register
- specify a cut-off date for entry onto the register
The Order may also include directions on the publication of the multi-party action, the referral of relevant cases to the judge for determination, and the removal of a case from the register.
Running the multi-action litigation
To join the register, a party must first issue proceedings and then make an application to the nominated judge. Once the date for joining the register has expired, the different parties have to try and nominate a lead solicitor. There can be more than one lead solicitor. If they fail, the judge can decide the lead solicitor following submissions from the different parties. A case conference will then be held to decide whether a lead case should be selected. The lead case should fairly and adequately represent the interests of all those on the register.
The judge can give directions to assist the fair, efficient and appropriate resolution of the action.
Any judgment or order given in a lead case in relation to a multi-party issue will be binding on all proceedings on the register at that time unless the judge orders otherwise. The judge can give orders on the extent to which the judgment is binding on proceedings subsequently entered on to the register. Also, unless ordered otherwise, 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.
Class actions are commonly used in the United States, particularly in retail facing industries such as the automotive and pharmaceutical industries. The features required by a class to be certified are quite similar to those set out in the Bill. There must be numerosity, commonality, typicality, and adequacy. If the lawsuit is brought by the initial plaintiff on behalf of a hypothetical class of people who have not yet joined the action and monetary damages are being looked for, the class must satisfy the additional requirements including:
- predominance – that questions of law or fact common to the class members are most prominent, over any questions affecting only individual members, and
- superiority – that the class action is superior to other available methods for the fair and efficient adjudication of the controversy
Generally speaking, in the US, class members are participants in the litigation unless they opt out. The filing of a class action generally stops the limitation periods that apply to the individual claims of all of the putative class members even if not aware that the class action is pending. In contrast, the Multi-Party Actions Bill puts forward an “opt in” system. The Law Reform Commission recommended that the Statute of Limitations will not stop to run against each claim until that case has been filed in court in the normal way.
The Bill has not yet passed the second stage of the legislative process and it is not yet clear how much government support it will receive. When moving the Bill, Sinn Féin Spokesperson for Justice & Equality,
Donnchadh Ó Laoghaire noted that both Fianna Fáil and Labour had in the past supported multi-party actions “in principle”. Should the Bill become law it may provide an avenue for multi-party actions in medical negligence cases. However, while these cases may have common issues of fact or law relating to the possible liability of a physician or defect in a medical product, it may be more difficult to prove commonality on the causation aspect of the negligence test.