Representative Procedures and the Future of Multi‐Party Actions

Abstract

The Consultation Paper Access to Justice Multi-Party Situations: Proposed New Procedures produced by the Working Party set up by the Lord Chancellor's Department continues the interest in the potential for multi-party procedures to alleviate concerns about access to justice. It anticipates that it is possible to devise a procedure which will serve two primary purposes. The first is to enable recovery where large numbers of people have been affected by another's conduct and the individual losses are so small that individual actions would be economically unviable. The second is to promote more efficient use of court resources resolving common issues in a single proceeding will prevent re-litigation of the same points. The latter objective also serves the goal of consistency in judicial decisions. The Consultation Paper proposes that any new procedure will balance the normal rights of claimants and defendants and the interests of a group in pursuing litigation as a whole.' In proposing a new procedure to achieve these worthy ends, the Consultation Paper does not refer to the representative procedure which was found in the Rules of the Supreme Court2 and, it is assumed, takes the view that it was not suitable for managing group litigation. It is certainly true that that rule is generally perceived to be of limited utility.3 However, the procedures proposed in the Consultation Paper have not, as yet, been incorporated into the new Civil Proceedings Rules, and the representative proceedings rule is retained in Schedule 1 to the new Civil Proceedings Rules.4 This article will suggest some reasons for the restricted use of the representative proceedings rule, and consider whether the procedures proposed in the Consultation Paper address the limitations of the existing rule. Multi-party procedures are intended to accommodate the situation where there is more than one person with the same or similar claims, or potential liability. There are, broadly speaking, two approaches to the multi-party situation. The first approach relies on each person being a party to an action. The court may add a new party to the proceedings if it is desirable in order to enable the court to resolve all the matters in dispute or to resolve an issue involving the new party and an existing