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ESSAY PLAN 1 - Multi-Party Group Litigation Intro English multi-party litigation can take one of three forms: (1) Representative proceedings - CPR 19, S II; (2) Group Litigation Orders (CPR 19, S III); or (3) consolidated litigation - joinder of co-claimants e.g. Weir (no 1): group of C's formed an action committee which brought a single action for 50,000 co-claimant shareholders who were each full parties to the proceedings; is opt-in. Lord Woolf (1996) identified 3 fundamental objectives that the multi-party litigation regime ought to achieve: 1) access to justice; 2) expeditious, effective and proportionate; 3) balance beween C's and D's Andrews shortly after CPR Pt 19 came into effect - "the custodians of English civil justice have not formally created a mechanism for assessing the success of group litigation". Pro GLO (opt-in) Characterised by high levels of case management at all stages of the proceedings Opt-in system but no limit to the number of parties who might register their names in GLO Mainstay of multi-party litigation, though it is possible that relaxation of rep proceedings so as to accommodate some pecuniary claims, might cause GLOs to become less important during the next decade. Turner (response to 2011 European questionnaire) - shortest set of rules in civil litigation code...imaginative thinking. Six main components: 1) court must approve a GLO 2) Opt in 3) group member enjoys both membership of the group and general status as fully-fledged party to civil proceedings 4) the court exercises extensive case management and issue directions including (19.13): providing for 1 or more claims on the group register to proceed as test claims; appointing a solicitor to be the lead solicitor; specifying the details to be included in a statement of case; specifying a date after which no more claim can be added to the group register unless court permits. 5) if group loses the case, each group member is liable to the victorious party both for that member's share of the common costs of the proceedings and for any individual cots specifically incurred with respect to his claim; but if the group wins, the defeated party is liable to pay costs attributable to both the common costs and the individual costs
6) decisions on common issues are binding on and in favour of the group. Thereafter has to show suffered personal loss. Versatile and wide-ranging- no restriction on the subject matter; all forms of civil wrongdoing and dishonest misconduct can form the basis of common issues; all necessary to show is that there are common or related issues of fact or law. The group litigation order system has been used extensively to enable various types of claims for pure financial loss to be brought against major companies. Procedure can accommodate allegations of fraudulent dealing or misrepresentation, breach of contract, breach of trust, breach of fiduciary duty and violations of securities law. Tew (2010) - Mann J: upheld decision to authorise a GLO concerning alleged unfairness in the provision of a certain type of mortgage. Shows that the GLO system can flexibly accommodate different categories of C and claims arising from the same or related set of facts, and the case also shows that different D's can also be validly party to a GLO procedure. Mann J's comments show the court's determination to ensure the procedure is used speedily, effectively, with proper focus, and appropriately: "advantages in automatically binding all participants in relation to the genuinely common issues, and provides a useful umbrella for controlling other claims by means of stays. There may be advantages in dealing with costs too". Wide range of GLO's: Sayers - claims for personal injury arising from pharmaceutical drugs Boake Allen - corporation tax allegedly overpaid to UK Revenue Autologic - loss of group tax relief. Lord Nicholls: "six groups of companies have been selected as test cases. They represent a large number of C companies". Turner (2008) - GLOs have settled/decided in half or a 1/3 of the time normal litigation might have taken = speedy. Andrews - highlights positives of C having a choice to enter into litigation or not e.g. liberty. Allows the D to know the size of the pool of potential C's BUT this is doubted by Mulheron (2005a) - if miss cut off date- D doesn't know how many individual claims he may face. Benefits of GLOs doubted in terms of quickness and choice doubted! - can be just as bad if not worse that reps e.g. Mulheron (2007) uses the case of Owen v MoD - GLO claim: he didn't have a CHOICE to be the lead case or not. He couldn't detach himself; his delay was delayed for many years by creation of group action. Anti GLO (opt-in) Funding is a major issue - public funding for group litigation is seldom funded. Hodges (2006) - "the funding of large cases remains complex and controversial. The size of the funding required and the loser pays rule require sophisticated arrangements to be put in
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