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Current issues in English group actions – John Kelleher, Partner Addleshaw Goddard

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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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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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