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Class Actions?

In Brooks Thomas Ltd. V Impac Ltd. [1999] 1 I.L.R.M. a judge opined that the Rules of the Superior Courts should be changed to, effectively, reverse the burden on applications for Discovery in the Superior courts.

Within the year, that was done by the introduction of Statutory Instrument No. 233 of 1999 (Rules of the Superior Courts (No. 2) (Discovery)).

In 2005 the Law Reform Commission (LRC 76-2005) recommended the following:

2. The Commission recommends that a formal procedural structure to be set out in Rules of Court be introduced to deal with instances of multi-party litigation.

3. The Commission recommends that reform of current procedures to deal with multi-party litigation should be based on the following principles: procedural fairness for the plaintiff and defendant; procedural efficiency; and access to justice.

4. The Commission recommends that the proposed procedure for dealing with multi-part litigation shall be called a Multi-Party Action (MPA).

To date, nothing has happened.

A recommendation from the Law Reform Commission carries only moral or intellectual authority. In the absence of political leadership (or judicial muscle, which is the same thing), it is possible to ignore the work of the Commission.

A Multi-Party Action (MPA) would permit the taking of representative legal proceedings where large numbers of persons had suffered from, effectively, the one wrong. The class of wronged persons would be the beneficiaries of the judgment and the judgment would reflect the totality of the loss of the class.

Currently there is no procedure to achieve this result. This state of affairs is favourable to wrongdoers, especially corporate wrongdoers. To permit class actions is to admit that, often, individuals can have a reasonable prospect of justice against a modern corporation, or the state, only through the action of a collective.

It may be that to permit the introduction of class actions is in opposition to the zeitgeist in Ireland.

That zeitgeist is expressed in the benefits conferred on corporate defendants and the state by Statutory Instrument No. 233 of 1999.

It is to defendants of that ilk that the current rules on discovery are of benefit. They are the paradigm producers of paper, paper which can be evidence, and often the only evidence, of wrongdoing by the corporate defendant.

Undoubtedly, the rules relating to discovery will require to be re-visited to allow MPAs to function correctly.