In recent years there have been a number of cases of mass harm in Ireland, including contaminated blood products, army deafness, asbestos-related ill health, Pyrite damage, the Volkswagen emissions scandal and the recent tracker mortgage rate abuse by banks. It is natural that victims of such mass harm might seek a legal remedy through the courts. Ireland, however, is a common law jurisdiction that does not yet have an effective mechanism for multi-party litigation of mass harm. This is despite recommendations in 2005 by the Irish Law Reform Commission (LRC) , Ireland’s principal public body for the investigation of law reform, for the introduction of a new litigation procedure in the form of a multi-party action (MPA). Instead, occasionally the courts use a confusing array of alternative methods in cases where an MPA mechanism would have had an obvious role.
This paper explores the phenomenon of mass harm and the role multi-party actions as a potential route to redress for such harm. It gives an overview of the current Irish mechanisms for dealing with mass harm and is illustrated by a number of cases exemplifying the problems associated with mass harm litigation. The implications that these difficulties entail for access to justice in Ireland are evaluated and the practical aspects of this procedural lacuna are illustrated. These are explored in light of the LRC Report on multi party litigations and its recommendations. Finally, there is an examination of what may potentially lie ahead for multi-party litigation having regard to ongoing developments in other jurisdictions and European Union initiatives, together with the implications of the Aarhus Convention and related aspects of human rights. The paper concludes that optimum way of achieving collective redress requires a modern holisitic approach. This requires an integrated model comprising a combination of tools from a range of solutions including regulation, ADR, courts, ombudsmen, among others. It would appear that MPA litigation is necessary as a remedy of last resort to deal with mass harm where other techniques fail to deliver collective redress and where there is therefore no alternative to the courts.
Blennerhassett, Joanne, Mass Harm Litigation in Ireland and Multi-Party Actions (December 5, 2017). UCD Working Papers in Law, Criminology and Socio-Legal Studies Research Paper No. 24/17.