Litigators could see a dramatic increase in workload if the Lord Chancellor's latest proposal is adopted.
A consultation paper on whether to allow consumer, environmental, trade and other pressure groups to bring private actions on behalf of their interest groups for the first time was issued last week.
Litigation may change, as the interpretation of locus standi would be much more widely construed. Pressure groups would not have to prove that they had suffered direct damage from the defendant's actions.
Partner Paul Bowden of magic circle firm Freshfields Bruckhaus Deringer was concerned about the wide interpretation of bringing actions on behalf of anyone with a “sufficient interest”.
“If this new rule were to work like the US class action system, that would be a worrying development,” he says. “Many such cases in the US have failed because of procedural complexities, but they've massively increased unmeritorious litigation which has resulted in blighting the entire US tort law system.”
While proposals to allow pressure groups to bring actions on behalf of named individuals have been provisionally accepted by the Lord Chancellor's Department, head of legal affairs at the Consumers' Association Ashley Holmes, who was a member of the working group, says that no decision has been made concerning bringing actions on the part of unnamed individuals.
Bowden was concerned that this could lead to disparity between both parties. “Another concern is the ability that a defendant would have to properly investigate unnamed individual claims in a representative action,” he says.
Richard Gordon QC of magic circle set Brick Court admitted that litigation would increase, but he stressed that not all organisations could afford or justify such actions.
Gordon says: “The relationship between poverty-stricken individuals and wealthy entrepreneurs can never be totally equal, because legal aid or funding will never match the might and funds of corporations. The proposal could lead to a 50 per cent increase in public interest-type litigation.”
Consequently, companies and corporations may have to boost their legal teams to cope with a greater flow of claims.
Holmes denies that the proposals would have a negative impact. He says: “This allows groups like us to represent our consumers and provide better access to justice. It's good news.”
The Government and the Lord Chancellor are believed to have introduced the measure in response to the Human Rights Act.
The Lord Chancellor's Department says: “The Government will take into account all views during the consultation process.”