BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW

Multi-Party Litigation in Comparative Perspective

27 June 2005

BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW

Multi-Party Litigation in Comparative Perspective

27 June 2005

Current issues in English group actions – John Kelleher, Partner Addleshaw Goddard

Should class actions be introduced into European law?

Wide differences between procedural rules eg discovery/disclosure

Major differences in funding arrangements

Cultural differences in the general approach to litigation

Group actions in England

Part 19 CPR - the rules:

Establish framework for management of “claims which give rise to common or related issues of fact or law”

Intended to provide flexibility for dealing with problems created by these cases

Group actions in England

Key issue is flexibility

Court needs some discretion in devising appropriate procedures

Criticism of the group litigation regime is premature

Group actions in England

Multiple Claimants to the same cause of action

Claims give rise to related issues of fact or law

Opt-in approach

Trial of test cases or issues

Judgment binding on all parties to the litigation

Cost sharing between Claimants

Trial of test cases or issues

Defendants argue that if claims are to be pursued, the facts of each case need to be investigated

Ultimate resolution of any group action will require the trial of lead cases

Claimants prefer to deal with generic issues and then prosecute individual cases later

Inquisitorial system advocated by Claimants Independent investigative body to look at group cases

How could critical issues be tested without reviewing specific facts of the individual cases

Pre GLO regime cases

Myodil litigation

Early investigation and prosecution of individual cases helped ultimate resolution

The Norplant litigation

Judge favoured individual approach rather than the generic approach – more likely to result in economic and manageable litigation

Group actions in England

The use of pre-action protocols

Standard minimum requirements

Group actions in England – funding issues

These actions are costly to fund

Disclosure and expert evidence

Investigation of individual cases

Potential exposure to other side’s costs

Funding options for Claimants

Private funding – but exposed to Defendants' legal costs if losing party

Conditional fee agreements (CFAs) – still carry the risk of paying costs if action lost

After the event insurance will be very difficult to obtain for group actions

Group actions in England – public funding

Legal aid remains available – “wider public interest” test

LSC will look for costs savings and will exercise tight control

LSC will not fund scientific or medical research in the future

Conclusion

Too early to say whether the group litigation regime is flawed

Issue of funding is a greater preoccupation