DÁIL SPEECH ON MULTI-PARTY ACTIONS BILL 2017

I appreciate the opportunity to speak about the important Multi-Party Action Bill 2017 and commend Sinn Féin Deputies Donnchadh Ó Laoghaire and Pearse Doherty on introducing it. I welcome it and will be supporting it fully.

Like many other Deputies, including the Acting Chairman, there have been many times throughout my political career when I have thought that access to multi-party or class actions would be of immense use to citizens and for society at large. There have always been issues that have affected citizens very profoundly and damaged their lives and I believed they should have had the remedy of class action type legislation. As a colleague just said, these are cases in which individuals face powerful companies and corporations. The current tracker mortgage scandal is a prime example where banks illegally refused to offer tracker mortgage rates to customers in line with the original mortgage agreements. The earlier scandal of endowment mortgages where consumers were badly misled by mortgage and insurance companies would also have benefited from mass-harm legislation and multi-party actions. The Acting Chairman will remember that particular major scandal.

The huge suffering and costs imposed on households, families and local authorities after the discovery of pyrite in boomtime housing also called out for mass-harm legal remedies and class action against those ultimately responsible. Of course, there have been also many health, education, housing and other social deficiencies over the decades where deeply affected citizens would also have benefited greatly from multi-party legislation.

Many countries, in particular other common law jurisdictions, have had multi-party actions for many years. People often think first of the United States when class actions are mentioned. People remember, for example, class actions against the tobacco industry, the car industry and other powerful sectors of the US economy. Sometimes class actions have been criticised there on the grounds that the legal profession gains most from them and that class lawsuits often bind all participants in an action to a lower settlement than might reasonably have been secured in a solo action. However, the US Class Action Fairness Act of 2005 addressed some of these concerns.

In the United Kingdom the civil procedure rules of the courts of England and Wales introduced from 1999 have provided for representative actions. There is also a sectoral mechanism under the Consumer Rights Act 2015 for breaches of competition law which is very helpful for citizens.

  In the Canadian provinces class actions are also permitted. Quebec began class action proceedings in 1978 and was followed by most of the other provinces. There is also multi-party action in the Federal Court of Canada. Quebec citizens were fortunate to have this legislation in place when their pyrite scandal erupted about 25 years ago. There was much more accountability there than there has been in Ireland.

Under the Federal Court of Australia Act, in 1992 Australia introduced “representative proceedings” along the lines of American class actions. In New Zealand multi-party actions can be brought under High Court rules and the emergence of litigation funders has played a major role in progressing class actions. There are also class actions and multi-party legislation in many of our European neighbours, including France, Germany, Italy, Austria, the Netherlands, Spain and so on.

In 2005 the Law Reform Commission produced a comprehensive report on multi-party litigation and, of course, many of its recommendations are reflected in the Bill. Last year I asked the Tánaiste and then Minister for Justice and Equality, Deputy Frances Fitzgerald, to urgently introduce mass-harm or multi-party legislation based on the 2005 report. As she indicated, the Government was considering this legislation; therefore, the Minister, Deputy Charles Flanagan, has an opportunity to support and progress the Bill.

The Law Reform Commission’s report of 2005 followed on from its work in 2003 and is a comprehensive guide to the framing of rules for superior courts to permit class actions and the methods of funding of multi-party legislation. It cites case studies such as the social welfare equality cases and the Army deafness claims and sets out principles of procedural fairness and efficiency which could underpin mass-harm actions. It addresses key elements of multi-party litigation, including defining the common interest of plaintiffs, the characteristics of representative cases and the idea of a single or lead solicitor, which is very much reflected in the Bill. Rereading this very thorough research and the Bill which is based on it, it is difficult to understand why the past four Governments resolutely ignored the commission’s report and chose not to institute class action legislation.

Outstanding work has been carried out on mass-harm and multi-party legislation by the distinguished academic Dr. Joanne Blennerhassett who lectures in the Sutherland School of Law in UCD and has recently been working in Oxford. She has researched the subject following her chance meeting with the environmentalist Ms Erin Brockovich. She focused on this lacuna in the legal system and published her research in a book, A Comparative Examination of Multi-Party Actions – The Case of Environmental Mass Harm. Her doctoral research and subsequent book examine the phenomenon of mass harm and how affected citizens may seek legal redress. The book looks at environmental mass harm as a case study and explores the best solutions for citizens to pursue legal remedies. Dr. Blennerhassett believes multi-party action may be absolutely necessary in certain circumstances where other avenues of redress have failed and that all those involved in mass litigation, the defendants, judges and the courts system, could benefit from a multi-party litigation procedure. She has been in touch with me a few times in recent years and I hope the outcome of her research will be reflected today. I am sure she is delighted that the legislation is before us.

Regarding the specifics of the Bill, section 2 outlines the application process for the certification for a multi-party action. The authors have carefully framed the section such that applicants will need to apply to the Courts Service for a certificate and to see if there have been previous relevant actions. The application must be made to the President of the High Court who will, in turn, nominate a judge to deal with the certification, following which the matter will be a multi-party action order.

Section 3 sets out the details of the order which will establish a register, specify the multi-party action issues and so on. The order will also include a direction that after a certain date a party wishing to be removed from the register will have to obtain permission from the judge. Section 4 provides for how a party will gain access to the multi-party action register.

  Sections 6 and 7 make provisions for the appointment of a lead solicitor and the selection of a lead case. They are particularly well framed, for which I commend the authors. Section 6(1) states there shall be consultation and agreement on the appointment, while subsection (3) makes provision for instances where a lead solicitor cannot be agreed, in which case the nominated judge will make the appointment. Subsection (4) provides for the appointment of more than one lead solicitor should the judge decide. Section 7(2) states the lead case must satisfy the judge that it “fairly and adequately represents all interests of all those on the Register”. Section 9 deals with the matter of costs incurred and indicates that the members will all be liable for these costs.

In general, the Bill is well founded on the outstanding research of the Law Reform Commission. I said earlier in the House that we should utilise the work of the commission in the codification of road traffic law. The work done here and also by the distinguished young Irish academic Dr. Blennerhassett on this legal procedure are well reflected in the Bill which the House, including Government Members, should support. We should allow mass-harm, multi-party actions to be a key legal device for citizens.