Gary Hickinbottom is a partner at McKenna & Co.
The Law Society's report, Group Actions Made Easier, was published last week.
It confirms as optimal the approach developed by our courts in treating multi-party action claims as individual actions but subject to case management techniques under an assigned judge taking a pro-active and firm stance. This would mean that such cases are dealt with cost-efficiently, sensibly and fairly. However, it highlights some contentious features of past cases, notably those of costs and funding.
The Legal Aid Board seems to have taken a more relaxed attitude towards funding claimants within group actions. The report discusses ways of funding claimants who happen to be part of a group action where they do not satisfy the usual merits test, and where a privately funded litigant would not be able to pursue a claim.
However, this discussion begs the question as to whether it is fair to others if group claimants are given financial assistance despite the board deciding that it is unreasonable for them to take proceedings at public expense.
Freedom of choice of lawyer is important and enshrined in current legislation. In the past, claimants have been represented by literally thousands of lawyers resulting in huge multiplication of costs. The report faces this square on: it considers that this freedom must be restricted. This necessary recommendation is likely to be the subject of debate.
In the past, defendants have investigated individual claims in a group, found them to be wanting in merit or viability and gone on to strike them out.
The report suggests that the court should have the power to prevent defendants investigating individual claims. In the past, particularly in product liability, defendants have investigated individual claims, found them wanting in merit and/or viability and gone on to strike them out in support of a challenge to the viability of the litigation as a whole. It is difficult, however, to think of a case in which it would be just to forbid a defendant to investigate claims against it – perhaps at its own cost – to keep alive cases without sufficient merit or viability.
Debate upon the costs and funding of group actions will continue; the Law Society's report makes an important contribution to that debate.