A new form of litigation, where a group or class of people can sue together, could become part of the Irish legal system if the latest report from the Law Reform Commission (LRC) is implemented.
The report, on multiparty litigation, was presented by Ms Justice Susan Denham yesterday. It deals with how a group of people affected by an issue, like those who brought the Army deafness cases, can bring a single action, thereby greatly reducing both the time and costs involved.
The report concludes that no new legislation is needed for its implementation, apart from a small amendment to the Civil Legal Aid Act to include multiparty actions. All that is required is an addition to the Rules of the Superior Courts, which is an administrative matter for the Courts Service and the judiciary.
Introducing the report, Supreme Court judge Ms Justice Denham said it was likely that the main beneficiaries of multiparty actions would be the less well-off and disadvantaged, who often found it difficult to access justice.
"Persons seeking to use a multiparty procedure may individually seek a small sum of money," she said. "To the poor and disadvantaged, a small sum of money may make an incredible difference to their life. Yet they are often unable to claim their right successfully. They are often unable to take the first step into court."
She pointed out that allowing for multiparty actions would also have advantages for defendants in such actions, reducing the costs of achieving a resolution. It would also use scant court resources more effectively.
For example, the Army deafness claims, pursued individually, ended up costing the State over €278 million, of which more than €94 million was legal costs.
Under the proposed new procedure, a case would be filed in the usual way by one or more individuals with the same issue against the defendant. The claimants would ask the court to certify a multiparty action, according to the LRC's head of research, Ray Byrne. The judge would specify a cutoff point by which people could opt in to the action, and the public notified.
The case would then proceed, and, if won, all those who had opted in would benefit. If lost, the costs would be shared by everyone in the case, though it has not, generally, been the practice of the State to pursue individuals for costs when they lose cases against it.
A particular judge would be nominated to hear the case from start to finish. Such cases would be "case-managed", that is, the judge would be proactive in identifying the issues and moving the case along. Case management has already been successfully implemented in the commercial division of the High Court.
Allowing for multiparty actions would not prevent individuals still taking their own cases, or test cases being brought, according to Ms Justice McGuinness, president of the LRC. However, under the test-case system, there was never any certainty the success of one individual action meant another action based on a similar situation would succeed.
One of the advantages of a multiparty action as proposed is that there would be one team of lawyers and one set of expert witnesses, she said. This would drastically reduce costs.