Collective Actions August 12, 2009
Posted by Richard Moorhead in : Uncategorized , 2commentsGovernment rejects CJC plea for generic right to bring collective actions.
The government has recently published a rather slender response to the CJC’s report Improving Access to Justice through Collective Actions. It rejects the central recommendation that there should be a generic right of collective action applicable to any type of civil law claim. With the government’s desire to consider rights to collective action on a sector by sector basis at the forefront of the response, proponents of collective actions will have to marshall evidence of need for collective actions in the chosen sector, deal with each relevant government department to persuade them of the need for change and persuade them that collective actions rather than some other regulatory approach is the most effective way forward (and that collective actions will not lead to unwarranted costs for business). One can almost hear the sound of long grass rustling, although the Civil Justice Council has announced an intention to draft the generic rules for collective actions which would be neceessary should any substantive areas of claim be permitted.
Evidence of need may be particularly difficult to come by as research of this kind is expensive and there are few funders, outside of government, with the resources to commission the work. Similarly, the government needs to be open about the evidence base that exists. The Government Equality Office is already reported to be sitting on a report recommending opt-out collective actions in certain employment cases. I have no problem with the idea that with the right powers regulators may be more effective (and cost effective) than collective action or that the CJCs proposals for opt-out required greater critical scrutiny, but I am concerned by an approach which relies on the familiar tropes that collective actions will inevitably lead to ‘US-style’ blackmail suits and unwarranted costs on business. Such claims are more poorly evidenced than the CJCs claims of need (which the government response wastes no time in critiquing) and no attention is paid in the response to the powerful counter arguments (in the UK costs rules, levels of damages and the considerable investment needed to run collective actions must deter, at least to some extent, the bringing of inappropriate collective actions and the CJC proposals recommended, in any event, provided for further protections).