REPORT - Law commission

1 REPORT MULTI-PARTY litigation (LRC 76-2005) IRELAND The Law Reform commission 35-39 Shelbourne Road, Ballsbridge, Dublin 4 ii Copyright The Law Reform commission 2005 First Published September 2005 ISSN 1393 - 3132 iiiTHE LAW REFORM commission Background The Law Reform commission is an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform. It was established on 20 October 1975, pursuant to section 3 of the Law Reform commission Act 1975.

2 The commission s Second Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in December 2000. The commission also works on matters which are referred to it on occasion by the Attorney General under the terms of the Act. To date the commission has published 74 Reports containing proposals for reform of the law; 11 Working Papers; 37 Consultation Papers; a number of specialised Papers for limited circulation; An Examination of the Law of Bail; and 26 Annual Reports in accordance with section 6 of the 1975 Act.

3 A full list of its publications is contained in Appendix C to this REPORT . Membership The Law Reform commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: The Hon Mrs Justice Catherine McGuinness, Supreme Court Full-time Commissioner: Patricia T. Rickard-Clarke, Solicitor Part-time Commissioner: Professor Finbarr McAuley Jean Monnet Professor of European Criminal Justice, University College Dublin Part-time Commissioner Marian Shanley, Solicitor Part-time Commissioner: Donal O Donnell, Senior Counsel Secretary John Quirke ivResearch Staff Director of Research: Raymond Byrne BCL, LLM, Barrister-at-Law Legal Researchers.

4 Deirdre Ahern LLB, LLM (Cantab), Solicitor Alan Brady LLB, LLM (Lond), Attorney-at-Law (NY) Claire Bruton LLB, LLM (Lond), Barrister-at-Law Ronan Flanagan LLB, LLM (Cantab), Barrister-at-Law Roberta Guiry BCL, LLM (NUI) Orla Joyce BCL, LLM (Cantab) Jane Mulcahy BCL (Law and German), LLM (NUI) Catherine-Ellen O Keeffe LLB, LLM (NUI) Sin ad Ring BCL (Law and German), LLM (NUI) Mary Townsend BCL, LLM (NUI) Aisling Wall BCL, LLM (Cantab) Administration Staff Project Manager: Pearse Rayel Executive Officer: Denis McKenna Legal Information Manager: Conor Kennedy BA, H Dip LIS Cataloguer: Eithne Boland BA (Hons), HDip Ed, HDip LIS Information Technology Officer: Liam Dargan Clerical Officers: Alan Bonny Debbie Murray Principal Legal Researcher on this REPORT Ronan Flanagan LLB, LLM (Cantab), Barrister-at-Law vContact Details Further information can be obtained from: The Secretary The Law Reform commission 35-39 Shelbourne Road Ballsbridge Dublin 4 T: +353 1 637 7600 F: +353 1 637 7601 E: W.

5 ViACKNOWLEDGEMENTS This REPORT follows from and builds upon the work carried out by the Law Reform commission in preparation for the Multi-Party litigation (Class Actions) Consultation Paper (LRC CP 25-2003) published in July 2003. As such, the commission wishes to thank once again all those who offered their advice and assistance at that stage. In October 2004, the commission held a seminar on multi-party litigation as part of the consultation process. The commission would like to thank all those who attended and contributed to the seminar.

6 The commission would also like to express its gratitude to those who made written submissions on the content of the Consultation Paper, namely the Competition Authority; the Association of Personal Injury Lawyers; Free Legal Advice Centres (FLAC); the Consumer Policy Unit of the Department of Enterprise, Trade and Employment; Professor Vince Morabito from the University of Monash, Australia; and Erwin Mediation Services. In the course of the researching and writing of this REPORT , the commission held a number of informative meetings and discussions with individuals and representatives of interested bodies.

7 In this regard, the commission would like to thank Dr Christopher Hodges from the University of Oxford; Mr David Clarke, McCann FitzGerald; the Irish Insurance Federation; the Competition Authority; the litigation Committee of the Law Society of Ireland; as well as the members of the judiciary who gave of their time and expertise. However, full responsibility for the content of this publication lies with the commission . viiTABLE OF CONTENTS INTRODUCTION 1 chapter 1 MULTI-PARTY litigation IN IRELAND AND PRINCIPLES FOR REFORM 3 A Introduction 3 B Scope of REPORT 3 (1) Public Actions 3 (2) Organisation Actions 5 (3) litigation Avoidance 6 (4) Private Actions 8 C Current Approaches to Multi-Party litigation 9 (1)

8 Introduction 9 (2) The Representative Action 9 (3) The Test Case 10 (4) Complementary Nature of Envisaged Procedure 13 (5) REPORT Recommendation 13 D Case Studies of Multi-Party litigation in Ireland 14 (1) Introduction 14 (2) Social Welfare Equality Cases 14 (3) The Army Deafness Claims 15 (4) Concluding Comments 16 (5) REPORT Recommendation 18 E Principles Underlying Reform in Multi-Party litigation 18 (1) Procedural Fairness and Practicality 18 (2) Procedural Efficiency 19 (3) Access to Justice 20 (4) REPORT Recommendation 22 chapter 2 PROPOSALS FOR REFORM 23 A Introduction 23 B Terminology 23 (1) Consultation Paper Recommendation 23 (2)

9 Discussion 23 (3) REPORT Recommendation 24 C Opt-in v Opt-out 24 (1) Introduction 24 (2) Consultation Paper Recommendation 25 (3) Opt-in v Opt-out: An Explanation 25 (4) The Arguments 26 (5) REPORT Recommendation 30 D Joining the Multi-Party Action and Register 30 (1) Discussion 30 (2) REPORT Recommendation 31 E Certification 32 (1) Consultation Paper Recommendation 32 viii(2) Discussion 32 (3) REPORT Recommendation 32 F Cause of Action 32 (1)

10 Consultation Paper Recommendation 32 (2) Discussion 32 (3) REPORT Recommendation 33 G Minimum Number of Parties 33 (1) Consultation Paper Recommendation 33 (2) Discussion 33 (3) REPORT Recommendation 34 H Common Interest 34 (1) Consultation Paper Recommendation 34 (2) Discussion 34 (3) REPORT Recommendation 36 I Predominance of Common Issues 36 (1) REPORT Recommendation 37 J Adequate Representation 37 (1) Consultation Paper Recommendation 37 (2) Characteristics of Representatives Cases 37 (3) REPORT Recommendation 38 (4) Number of Lead Cases 38 (5) REPORT Recommendation 39 K An Appropriate, Fair and Efficient Proc