A Comparative Examination of Multi-Party Actions: The Case of Environmental Mass Harm

by Joanne Blennerhassett, Christopher Hodges

Overview

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.

Product Details

ISBN-13:	9781509905294
Publisher:	Bloomsbury Academic
Publication date:	10/20/2016
Series:	Civil Justice Systems , #4
Pages:	344
Product dimensions:	6.69(w) x 9.61(h) x 0.81(d)

About the Author

Joanne Blennerhassett is a graduate of Trinity College Dublin, Université Paris 2 Panthéon-Assas (La Sorbonne), University College Dublin, the Law Society of Ireland and University College Cork. She is a College Lecturer in the Sutherland School of Law, University College Dublin, where she has lectured since 2003, specialising in Environmental Law, Tort Law, and Dispute Resolution. She has a background as a practitioner having practiced as a solicitor. She is also a qualified mediator and arbitrator. She was recently awarded a PhD in collective redress which formed the background research for this monograph.

Table of Contents

Foreword vii

Acknowledgements xvii

Author Biography xix

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

1 Introduction 3

1 Background 3

2 Aims, Original Contribution, Anticipatory Findings 4

3 Approach 6

4 Structure 9

A Part I 9

B Part II 10

2 Collective Redress and Mass Harm 11

1 Overview 11

2 Terminology 12

A Mass Harm 12

B Collective Redress 12

C Multi-party Actions 13

D Mass Torts 14

3 Typology and Sectoral Coverage of MPA Collective Redress 16

A Class Actions (also Known as Collective or Representative Actions) 17

B Joinder or Aggregate (also Known as Group) Litigation Procedures 20

C Examples of MPA Sectors 21

i Consumer Law Collective Redress 21

ii Competition Law Collective Redress 23

iii Collective Redress for Environmental Harm 23

iv EU Approach to Collective Redress 23

4 The History and Background of Mass Torts 25

5 Legal Responses to Mass Harm: Private Law (Tort Law) versus Public Law and Regulation 28

6 Context in which Collective Redress Arises 32

7 Outline of Common Law MPA Procedures 33

A United States 33

i Consolidation 33

ii Class Actions 34

B Canada 37

C Australia 40

i Joinder, Test Cases and Consolidation 42

ii Representative Proceedings 42

D England and Wales 45

i Consolidation, Joinder and Test Cases 46

ii Representative Actions 46

iii Group Litigation Orders 47

E Ireland 49

i Representative Actions 51

ii Joinder 51

iii Consolidation 51

iv Test Cases 52

F European Union 52

8 Summary 56

3 Objectives of MPAs 58

1 Overview 58

2 Expert Studies 59

A Access to Justice Study by Lord Woolf MR 59

B Irish Law Reform Commission Report on Multi-party Litigation 2005 60

C Civil Justice Council Report 63

D Mulheron Global Comparative Study 64

E European Commission Analysis 64

3 MPA Objectives-Analytical Framework 67

A Access to Justice 69

B Judicial and Procedural Economy 76

C Fairness 80

D Predictability 85

E Deterrence 86

F Compensation 88

4 Management Role of MPAs 91

5 Summary 97

4 Environmental Mass Harm and Collective Redress 98

1 Overview 98

2 Regulatory Role-Environmental Law Enforcement Through Tort Law 100

A Tensions between Tort Law and Regulation 101

B EU Perspective of Enforcement-a Different Approach 102

C England and Wales-Perspective on Enforcement 103

D Regulation and Adjudication 106

3 Distinctive Features of Environmental Mass Harm and Responses 107

A Toxic Torts 107

B Causation and Evidential Complexity 110

C Legal Costs 112

D Latency 113

E Environmental Justice Issues 116

F Other Issues that May Arise in Mass Environmental Harm Litigation 119

i Jurisdiction 119

ii Corporate Veil 120

4 Novel Remedies for Environmental Mass Harm 121

A Interim Measures-such as Medical Monitoring (Emergence in the US) 121

B Acute versus Chrome Environmental Harm and Novel Remedies 123

C Equitable Relief and Problems with Legal Restitution 123

5 Solutions that MPAs May Offer for Environmental Mass Harm 125

Part II Comparative Law Experience of Selected Common Law Jurisdictions and Europe

5 US Collective Redress 131

1 US Litigation Landscape 131

A US Federal and State Court System 131

B Important Features of US Litigation 132

2 US MPA Procedures 133

A Joinder 133

B Consolidation 134

C Multidistrict Litigation (MDL) Transfer of Distinct but Related Claims into a Single Action 134

D US Bankruptcy Proceedings for Corporate Reorganisation (Chapter 11) 135

E Attorney 'Inventories' of Clients Controlled by a Single Lawyer 135

F Representative Litigation by Associations 135

G Representative Litigation by Public Officials 136

H Class Actions 136

3 The US Federal Class Action Regime 136

4 Rule 23 of the Federal Rules of Civil Procedure (with 2003 Amendments) 139

A Rule 23(a) Prerequisites to a Class Action 139

B Rule 23(b) Class Actions Maintainable 140

5 Evaluation of US Class Actions against MPA Objectives 142

A Access to Justice 143

B Judicial and Procedural Economy 144

C Fairness 147

D Predictability 150

E Deterrence 151

F Compensation 152

6 Concluding Observations on US Mass Harm Litigation 152

7 Future Developments in the US 154

8 US Class Actions and Environmental Mass Harm 156

6 Canadian MPA Experience 159

1 Canadian Litigation Landscape 159

A Overview 159

B Evolution of MPA Landscape 160

2 MPA Litigation 161

3 Evaluation of Canadian Class Action Experience Against MPA Objectives 168

A Access to Justice 168

B Judicial and Procedural Economy 169

C Fairness 170

D Predictability 171

E Deterrence 171

F Compensation 171

4 Environmental Mass Harm Litigation 172

5 Summary 173

7 Australian MPA Experience 174

1 Australian Litigation Landscape 174

2 Evolution of MPA Landscape 174

3 MPA Overview 177

A The Quasi-Class Action Regime in the State of South Australia 177

B Traditional Representative Actions 178

C Representative Proceedings 178

D Joinder, Test Cases and Consolidation 179

4 The Representative Proceedings Regime 180

A Background 180

B The Regime 182

5 Litigation Funding 186

6 Evaluation of Australian Representative Proceedings against MPA Objectives 187

A Access to Justice 187

B Judicial and Procedural Economy 187

C Fairness 188

D Predictability 189

E Deterrence 189

F Compensation 189

7 Environmental Mass Harm in Australia and Summary 190

8 Collective Redress in England and Wales 191

1 Litigation Landscape 191

2 Existing MPA Procedures 192

A Public Representative Procedures 192

B Representative Actions, Consolidation, Joinder and Group Litigation Orders (GLOs) 195

i Representative Actions 196

ii Group Litigation Orders (GLOs) 199

3 Evolution of MPA Landscape 202

4 Funding Regime and Recent Changes 207

5 GLOs and MPA Objectives 209

A Access to Justice 209

B Judicial and Procedural Economy 210

C Fairness 211

D Predictability 212

E Deterrence 213

F Compensation 213

6 Combined Case Study of Environmental Mass Harm 213

A Group Litigation Using a GLO in The Corby Group Litigation Case 216

i Facts 216

ii Outcome 217

iii Commentary 218

B Case Management-The Buncefield Oil Disaster 219

i Facts 219

ii Outcome 220

iii Commentary 221

7 GLOs Compared with Case Management 223

8 Environmental Mass Harm Litigation in England and Wales Summary 225

A Access to Justice 226

B Judicial and Procedural Economy 227

C Fairness 228

D Predictability 229

E Deterrence 229

F Compensation 229

9 EU Collective Redress 232

1 Litigation Landscape 232

2 Evolution of European Collective Redress Policy 233

A Consumer Law Collective Redress 233

B Competition Law Collective Redress -237

3 EU Experience of Collective Redress and ADR in Member States 239

4 EU Commission's Collective Redress Policy Proposals 2013 245

A The Communication 247

B The Recommendation 248

C Proposed Directive on Competition Damages 250

5 Safeguards 251

6 Environment 252

7 Conclusions on European Collective Redress Outlook 253

10 Collective Redress for Mass Harm in Ireland 255

1 Litigation Landscape 255

2 The Irish Approach: No MPAs 256

A Overview of Current Irish Mechanisms for Dealing with Mass Harm 257

i Public Actions 257

ii Organisation Actions 257

iii Litigation Avoidance 258

iv EU Initiatives 259

v Private Actions 259

vi Other Discrete Areas 260

B Cases Exemplifying the Problems of Mass Harm Litigation in Ireland 261

i Social Welfare Equality Cases 261

ii Army Deafness Claims 261

iii Pyrite Construction Dispute 262

3 Particular Difficulties with Multi-party Litigation in Ireland 262

A Legal Aid 263

B Insurance 264

C Costs Follow the Event 264

D Conditional Fee Arrangements (CFAs) 264

E Advertising and the Irish Legal Profession 264

4 Irish Law Reform Commission Report on Multi-party Litigation 2005-A Closer Look 265

5 Evaluation of Irish Mass Harm Mechanisms and MFA Objectives 266

A Access to Justice 267

B Judicial and Procedural Economy 269

C Fairness 269

D Predictability, Deterrence and Compensation 270

6 Environmental Enforcement in Ireland 270

7 What May Lie Ahead 270

A Developments in England and Wales 270

B Aarhus and Human Rights 271

C EU Initiatives 272

8 Conclusions 272

11 Conclusion 274

Appendix: Federal Rules of Civil Procedure 2016 Edition 283

Bibliography 287

Index 299

Editorial Reviews

Overall, this book makes a welcome contribution to this topical issue and introduces readers to varying MPAs and their role ... an enlightening contribution useful to both academics and practitioners, having the potential to drive improvements in legal practice.” —The Irish Jurist

From the Publisher