A Comparative Examination of Multi-Party Actions

The Case of Environmental Mass Harm

Joanne Blennerhassett

• Publisher: Hart/Beck
• Year: 2016
• ISBN:
  9781509905317
• Edition: 1
• Topic: Diritto
• Subtopic: Procedure civili

This monograph addresses the phenomenon of mass harm and how it may be resolved through collective redress. It examines particularly how such redress may be achieved through mechanisms such as multi-party actions (MPAs). In order to do this, an analytical framework is created against which to evaluate various multi-party procedures. This is illustrated through the experience of a selection of common law jurisdictions in dealing with mass harm – namely that of England and Wales, Canada, Australia and the United States, as well as that of EU collective redress. It examines multi-party action laws benchmarked against the objectives identified in the analytical framework. The phenomenon of environmental mass harm in particular is explored as a case study, as it illustrates some of the difficulties that may arise in mass harm litigation. Also, this work explores where the best solutions for mass harm redress may lie in the future – perhaps in collective actions or through alternatives such as regulation and alternative dispute resolution or a combination of these. Finally, the experience of mass harm litigation in Ireland is examined, as currently this jurisdiction does not have an effective mechanism for dealing with mass harm. This title is included in Bloomsbury Professional's International Arbitration online service.

Part I

Collective Redress, Mass Harm, Multi-party Actions and Environmental Mass Harm

1

Introduction

1.Background

The origins of this research project can be traced to a 2007 conference in Dublin where a question raised by a guest speaker in relation to collective redress mechanisms ignited my curiosity. This led me to explore further the theme of collective redress and underlying questions about the role of Multi-Party Actions (MPAs) and how these may help to deliver the outcome of collective redress for those injured by widespread harm.

Ireland is an example of a common law jurisdiction that, at present, has no formal statutory or judge-made rules for MPAs, save for restricted representative actions. These representative actions are rarely invoked because they are of very limited use. Collective action, a common form of MPA, is not yet permitted. This sets Ireland apart from common law jurisdictions that have such MPA mechanisms and is a gap in the Irish legal framework. Under the existing statutory framework, MPAs seem to be actively discouraged. This is despite the fact that the Irish Law Reform Commission (LRC), Ireland’s principal public body for the investigation of law reform, has recognised the procedural gap that results from the absence of MPAs. In a major study in 2005 and subsequent LRC report, it explored the prospects for MPAs in Ireland and recommended their introduction.¹ While Ireland does not yet have a mechanism for MPAs as such, occasionally, the courts use a confusing array of alternative methods in cases where MPAs would have played an obvious role. In recent years there have been a number of cases of mass harm, including contaminated blood products, army deafness and asbestos-related ill health. Such cases usually draw widespread public interest owing to the nature of the claims involved, the scale of the potential class or the prospect of State liability. Normally, however, owing to the lack of an appropriate mechanism, those with cases potentially suited to an MPA must pursue them in another way. Great injustices and inefficiencies have resulted from these improvisations, yet, despite the LRC recommendations, there have not yet been any proposals for change in Ireland. This raises the question of why Ireland appears to be reluctant to adopt such an MPA procedure when it is has clearly experienced many cases of mass harm.

This suggests the need for an examination of the issues surrounding mass harm, collective redress and MPAs in a broad way and to undertake a comparative analysis of how other jurisdictions, in particular a selection of common law jurisdictions, use MPAs to try to achieve collective redress. One of the key themes arising in this research is the need for procedural justice and of managerial mechanisms to help deal with mass harm. It appears that MPAs play an important role in response to this need.

2.Aims, Original Contribution, Anticipatory Findings

Surprisingly few commentators have attempted to evaluate whether or to what extent MPAs have, in fact, improved access to justice.² This research examines the use of MPAs as a remedy for mass harm and addresses how they might empower those harmed and provide them with a route to collective redress. It examines what roles MPAs may play in enhancing access to justice. In order to do so, this work creates an analytical framework that establishes a series of MPA objectives in order to evaluate the extent to which MPAs may deliver collective redress. This framework highlights the fundamental aims of MPA procedures, comprising the following: (1) access to justice; (2) judicial and procedural economy; (3) fairness (including proportionality, balancing individual rights and personal autonomy, and non-abuse); (4) predictability; (5) deterrence; (6) compensation. This framework is then used to provide benchmarks against which to assess the use of MPAs and the extent to which MPAs may assist in the achievement of effective collective redress. This framework provides touchstones against which to examine the use of MPAs as redress mechanisms for mass harm generally and environmental mass harm in particular.

The area of environmental mass harm illustrates how challenging mass harm can be. It demonstrates the complexities and difficulties that can be involved this type of litigation, particularly for its victims. For this reason it is used as a case study of mass harm. It is used as an example to illustrate the findings in relation to MPAs and collective redress generally. It is touched upon within the examination of the jurisdictions in this research, where appropriate.

The areas of tort law, mass harm, environmental mass harm and collective redress are specific fields in which there is considerable scholarship and literature. It appears, however, that there has not been much research on their interaction. It seems that there has been little research in the area of collective redress for environmental mass harm to date and, therefore, a great need for further studies in this increasingly important area. Much of the environmental mass harm literature focuses on toxic torts, particularly in the United States (US).³ Despite the lack of literature on the area of environmental mass harm, it provides a good case study against which to test the findings of this study.⁴ This work is informed by the experience of a selection of common law jurisdictions in dealing with mass harm through MPAs. It also examines the emerging European Union (EU) solutions to collective redress to assess what role MPAs may play in the future pursuit of collective redress. This work also explores, as a corollary, alternative tools to litigation that appear to be growing in popularity, particularly in EU Member States.

MPA procedures form part of a range of remedies required to achieve collective redress for mass harm. It appears that MPAs are needed in order to surmount some of the challenges and difficulties presented by mass harm litigation. For example, it is clear that the collective nature of MPAs may assist plaintiffs to overcome some of the difficulties that may be encountered in taking legal action because their greater combined resources may enable them to ‘pool their resources’ and deal with these challenges collectively. In an apparent paradox, it is possible that mass treatment, whether by judges or other bodies involved in collective redress, can sometimes achieve a more effective remedy for individuals either through the courts or by using other procedures that are evolving for the resolution of mass torts, such as ADR and ombudsmen. MPAs can also aid enforcement.

When each of the MPA objectives is explored against the practical experience of the various modes of collective redress in the selected common law jurisdictions, the common theme of management emerges. The findings of this work will demonstrate that MPAs make an important contribution to the effective management of mass harm litigation. It appears that the idea of MPAs as managerial mechanisms is the overarching value informing each of the MPA objectives. This suggests that the essence of each of the criteria reflects the need for effective management of mass harm litigation. When these MPA objectives are achieved, they are indicative of procedural justice. The Oxford English Dictionary defines ‘management’ as: ‘the process of dealing with or controlling things or people’. For the purposes of this research, management in this context alludes to the ways in which MPAs, to the extent that they help to achieve the MPA objectives, can assist those involved in the process of mass harm litigation. Logistics and case management are elements of this but it comprises other issues, congruent with the MPA objectives. These encompass the ideas that are omnipresent around issues such as access to justice, judicial and procedural economy, and fairness, while ensuring that individual needs are met. This work does not focus on management techniques within MPAs as these relate to the procedural and technical managerial aspects of mass harm litigation.⁵ Instead, this study examines the objectives of MPAs and how these are indicators of the effectiveness of MPAs as managerial mechanisms that can help achieve procedural justice in mass harm litigation.

The administration of civil litigation is in crisis almost worldwide, due to the workload of courts. Therefore the challenges experienced in managing this crisis are common to many jurisdictions. With typical judicial clarity, Lord Woolf, in his Access to Justice report, highlights the need for MPA mechanisms as one of the solutions to help manage this crisis. He recognised that there are inherent difficulties with multi-party procedures and that his report was not a panacea to this.

In this area of litigation more than any other, my examination of the problems does not pretend to present the final answer but merely to try to be the next step forward in a lively debate within which the parties and judges are hammering out better ways of managing the unmanageable.⁶

Lord Woolf acknowledged that MPAs are not without their flaws and are not the end solution in order to ensure collective redress. He highlights, however, that they can act as mechanisms to assist with the managerial difficulties by surmounting some of multiple logistical challenges that mass harm presents. This suggests that he recognises that the key question around collective redress is of efficient management of scarce judicial and other legal resources so as to maximise the delivery of just outcomes to the victims of mass harm. This supports the notion that MPAs play an important role as managerial mechanisms to assist with the litigation of mass harm.

The LRC Report advocated that principles for reform in MPA litigation should ensure procedural fairness and practicality, procedural efficiency and access to justice.⁷ It suggested that, ideally, a multi-party procedure should render the system as efficient for the collective group as the demands for individual fairness will allow. The LRC acknowledged that the need for procedural fairness is the core element in any multi-party litigation. The LRC supported the objectives for multi-party litigation procedure ad...