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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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Current issues in english group actions john kelleher partner addleshaw goddard

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


Should class actions be introduced into european law

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


Group actions in england

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


Group actions in england1

Group actions in England

  • Key issue is flexibility

  • Court needs some discretion in devising appropriate procedures

  • Criticism of the group litigation regime is premature


Group actions in england2

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


Trial of test cases or issues

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


Pre glo regime cases

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


Group actions in england3

Group actions in England

  • The use of pre-action protocols

  • Standard minimum requirements


Group actions in england funding issues

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


Funding options for claimants

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


Group actions in england public funding

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


Conclusion

Conclusion

  • Too early to say whether the group litigation regime is flawed

  • Issue of funding is a greater preoccupation


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