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?  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 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 England  Key issue is flexibility  Court needs some discretion in devising appropriate procedures  Criticism of the group litigation regime is premature

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  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 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 England  The use of pre-action protocols  Standard minimum requirements

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  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  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  Too early to say whether the group litigation regime is flawed  Issue of funding is a greater preoccupation