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

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?.

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

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  1. BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAWMulti-Party Litigation in Comparative Perspective27 June 2005 Current issues in English group actions – John Kelleher, Partner Addleshaw Goddard

  2. 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

  3. 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

  4. Group actions in England • Key issue is flexibility • Court needs some discretion in devising appropriate procedures • Criticism of the group litigation regime is premature

  5. 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

  6. 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

  7. 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

  8. Group actions in England • The use of pre-action protocols • Standard minimum requirements

  9. 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

  10. 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

  11. 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

  12. Conclusion • Too early to say whether the group litigation regime is flawed • Issue of funding is a greater preoccupation

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