As mentioned above, multiparty litigation in Ireland may proceed by way of 'representative action' or 'test case'. There is no formal class action procedure in Ireland. A representative action arises where one claimant or defendant, with the same interest as a group of claimants or defendants in an action, institutes or defends proceedings on behalf of that group of claimants or defendants.
Representative actions will typically arise where the class either has a pre-existing relationship with the main party, or where the class is relatively small. Because of this, the more common approach to multiparty litigation in Ireland is usually the test case.
A test case can arise where numerous separate claims arise out of the same circumstances. By way of example, in 2008 the Commercial Court was faced with more than 50 individual shareholder claims related to the fraudulent investment operations run by Bernard Madoff. The Commercial Court exercised its inherent jurisdiction in deciding to take forward a small number of cases initially, as test cases. In this instance, it was decided that two cases by shareholders and two cases by funds would be heard sequentially as a first step and the Court stayed the other claims pending the resolution of the four test cases.
A similar approach was adopted by the Irish Commercial Court in relation to claims for the mis-selling of financial products that were initiated by over 200 claimants against ACC Bank in 2010. Five claimants' cases were heard as test cases and the remaining claimants agreed that 'the outcome of the litigation will determine the result of their claims, subject to the possibility of a separate trial on particular and unusual facts different to those in issue in these proceedings.'i Types of action available
In order to bring a representative action there must be 'a common interest, a common grievance and relief in its nature beneficial to all'. There is sufficient 'common interest' where the dispute involves joint beneficial entitlement to property, such as customary rights or corporate shareholdings. In contrast, the courts have refused to extend the representative procedure to actions founded in tort, a point emphasised by the Supreme Court in Moore v. Attorney General (No. 2). Notwithstanding this pronouncement, courts have occasionally entertained representative actions founded in tort where the relief sought is injunctive. There is an analogous prohibition on representative actions against individuals for breach of constitutional rights.
Test cases are not limited to any particular types of action. However, in practice these procedures are typically utilised in tort actions where a negligent act or misrepresentation has affected a number of people who wish to have their rights vindicated. For example, claims for the mis-selling of financial products will often involve an allegation that the financial service provider committed the torts of misrepresentation or negligent misstatement.
The following limitation periods apply to the various causes of action:
- tort claims: six years from the date of accrual of the cause of action;
- contract law: six years from the date of breach;
- claims for liquidated sums: six years from the date the sum became due;
- personal injuries under negligence, nuisance or breach of duty: two years from the date of the cause of action accruing or the date the claimant first had knowledge, if later;
- land recovery: 12 years from accrual of the right of action;
- maritime and airline cases: two years from the date of accrual of the cause of action;
- defamation: one year from the date of accrual of the cause of action; and
- judicial review: the claim must be brought promptly and in any event within three months of the date of the cause of action (the court can extend this period if there is a good reason).
The period during which mediation takes place in a cross-border dispute to which the Mediation Directive applies is excluded from the calculation of the limitation periods.
The Law Reform Commission's Report on Limitation of Actions 2011 discusses the limitation of all actions (although property claims are excluded). The Law Reform Commission recommended the introduction of a limitation period of two years, to run from the date of knowledge of the claimant for 'common law actions' (breach of duty, negligence, contract and nuisance). The 'date of knowledge' is the date from which the claimant knew or ought to have known of the cause of action and 'knowledge' includes both actual and constructive knowledge. Interestingly, an 'ultimate' limitation period of 15 years was also recommended. It was proposed that this would run from the date of the act or omission giving rise to the cause of action and there would be statutory discretion to extend this limitation period. It should be noted, however, that the proposals put forward by the Law Reform Commission are not binding and, to date, none have been implemented.
The Financial Services and Pensions Ombudsman Act 2017, enacted in July 2017, revised the limitation period for bringing complaints to the Financial Services and Pensions Ombudsman (FSPO) in respect of 'long-term financial services'. The definition of a long-term financial service captures products or services where the maturity or term extends beyond six years, and is not subject to annual renewal.
The revised limitation period for complaints in relation to long-term financial services is either: six years from the date of the act or conduct giving rise to the complaint; or, three years from the earlier of the following two dates:
- the date on which the consumer making the complaint first became aware of the said act or conduct; or
- the date on which that consumer ought to have become aware of that act or conduct.
Prior to the commencement of the Act, the Financial Services Ombudsman (the predecessor of the FSPO) had no jurisdiction to investigate complaints where the conduct complained of occurred more than six years before the complaint is made and had no discretion to extend this limitation period. This extension only applies to complaints to the FSPO and not to claims brought before the courts.
For other short-term financial services, the limitation period is six years.
It must be anticipated that multiparty litigation, by way of complaints made to the FSPO, could arise as a result of the change to the limitation period.ii Commencing proceedings
To litigate the various actions set out above, a person must have sufficient interest in the subject matter of the action. Provided a person has sufficient interest or standing, that person may institute proceedings. Alternatively, in respect of representative actions, where a claimant or defendant has the same interest as a group of claimants or defendants in an action he or she may institute or defend proceedings on behalf of that group of claimants or defendants.
To commence proceedings by way of representative action, an application must be made to the court for an order permitting the claimant or defendant to bring or defend the proceedings on a representative basis. The application for such an order will be grounded by an affidavit that lists each of the interested parties who have agreed to be represented in the proceedings. Each member of a class has to 'opt-in'; that is to say that the court must be satisfied that each individual has authorised the main party to represent them. Where the claimant or defendant sues in a representative capacity, the endorsement of claim is required to show the capacity in which the party is suing or being sued. There is a strict requirement that the parties must have the same interests in the same proceedings as opposed to merely similar or 'common' interests. Any judgment or order in the action will usually then bind all claimants or defendants represented.
To commence proceedings by way of a test case, each party must institute its own case and then one party becomes the benchmark by which the remaining cases are resolved. Importantly, however, each case is judged on its own merits (by a judge alone) and the fact that causation is proved in the context of one case does not necessarily guarantee the same outcome in all subsequent cases unless the facts, liability issues and causation are identical. The Irish courts take great pains to ensure that each case is judged on its own merits, and this is seen to benefit defendants, as plaintiffs are put to the expense of having to fully prove their case despite the fact that numerous similar (but not necessarily identical) cases may have already been determined. In reality, however, if there has been a negative finding against a defendant in a test case and liability has been established, where there are numerous similar cases yet to be heard, a defendant (or its insurers) will attempt to settle the outstanding claims unless they can be distinguished in terms of liability, causation or fact from the test case.iii Procedural rules
The average length of proceedings in the High Court (from issue to disposal) is approximately two years. This can vary, however, depending on the complexity and urgency of the case.
The High Court has a separate commercial division (the Commercial Court). This specialist court has extremely stringent case management procedures in place and judgment is generally delivered quite promptly. According to the Commercial Court's own statistics, 90 per cent of cases that come before it are concluded within one year.iv Damages and costs
In representative actions, the plaintiff is entitled only to declaratory and injunctive relief.
The test case plaintiff will have their award of damages judged on the merits of their individual case.
Damages can be compensatory or punitive, for example:
- general damages: compensation for loss with no quantifiable value, such as pain and suffering;
- special damages: compensation for precise financial loss, such as damage to property;
- punitive (exemplary) damages: awarded to punish the behaviour of a defendant (rarely awarded); and
- nominal damages: awarded where the claimant has been wronged but has not suffered financial loss.
The level of damages that may be awarded is determined by the court before which the action is brought; claims up to a value of €15,000 are dealt with by the District Court, while the Circuit Court deals with claims with a value between €15,000 and €75,000 (the upper limit is €60,000 for personal injuries cases). Any claim with a value in excess of €75,000 is heard by the High Court, which has an unlimited monetary jurisdiction. Choosing the correct court is a particularly important step for a claimant as one can be penalised as to costs by a court, where they receive an award of damages that does not meet that court's jurisdictional threshold. Provided that court is also of the opinion that the action could have been taken in a lower court, it is permitted to award the typical costs of the lower court action.
As noted previously, subsequent litigation following a test case is often settled on the basis of the test case outcome and, in such circumstances, an award of damages does not fall to be considered by the court.
While there are no specific costs rules applicable to multiparty litigation, costs 'follow the event' in Ireland (i.e., the successful party is entitled to recover its costs from the unsuccessful party). Costs are ultimately a matter of discretion for the court, however, and although this 'loser pays' rule is the norm, it is becoming more common for issues-based cost awards to be made. It should also be noted that costs in this jurisdiction are usually awarded on a 'party-party basis'. This means that the successful party is only entitled to recover the costs reasonably incurred by them in prosecuting or defending the litigation. Recoverable costs are usually anywhere between 50 and 75 per cent of the total costs incurred.
Irish lawyers are expressly prohibited from charging fees by reference to a percentage of damages awarded. Litigation lawyers are permitted, however, to enter into arrangements known as 'no foal, no fee' or 'no win, no fee' arrangements. These are conditional arrangements with clients, where any payment made at all by the client to the solicitor is conditional on the success of the case. No foal, no fee arrangements are more common in individual personal injuries claims than in commercial cases.
As mentioned above, multi-plaintiff litigation can also arise in the form of complaints made to the Financial Services and Pensions Ombudsman (FSPO). The FSPO is a quasi-judicial body tasked with resolving disputes outside of litigation. While parties to complaints to the FSPO are permitted to be legally represented at each stage of the complaints process, the costs of such representation are a matter for the party who incurs the costs to bear himself or herself and the FSPO is not empowered to award costs.v Settlement
There are no rules of court to be followed in multiparty litigation in Ireland. Where multiparty litigation is brought by way of a test case, the test case effectively becomes the benchmark by which the remaining cases are resolved. However, because the subsequent claimants and defendants are not parties to the original litigation, they are not bound by the result of the test case and are not party to any settlement agreement entered into in the test case. Although not bound by the result, the test case has an effect by virtue of the doctrine of precedent. Therefore, the benefits of the original ruling may be extended to cases involving factual situations identical to those of the test case. As a result of this, subsequent litigation is often settled on the basis of the test case outcome.
Where multiparty litigation is brought by way of a representative action, since representation extends to all aspects of the legal proceedings, including settlement, the representative has autonomy over the way in which the litigation is conducted, subject to the expectation that he or she will act in the interests of the class. Generally, any judgment or order in the action will bind all persons represented at the direction of the court. Representative actions, therefore, presuppose a level of confidence between the representative and the members of the class.
A settlement agreement between parties to litigation is a binding contract and, subject to the ordinary rules of contract law, the parties are free to choose to enter into and agree the terms of a settlement agreement. Court sanction is not required for a settlement save where the case is one in which money or damages are claimed by or on behalf of an infant or a person of unsound mind suing either alone or in conjunction with other parties.