K12.2. Issues inherent in multi-party litigation
388. |
If litigation in a multi-party situation is to
be dealt with effectively, it is necessary for certain compromises and adjustments to be
made in respect of the procedural rights of plaintiffs and defendants. As Lord Woolf
points out, the rules must :- |
|
|
|
|
"...... achieve a
balance between the normal rights of claimants and defendants, to pursue and defend cases
individually, and the interests of a group of parties to litigate the action as a whole in
an effective manner." (Note
331) |
|
|
|
389. |
It is also necessary to provide mechanisms for moulding
members of a class of potential plaintiffs into a workable group, with the court, if
necessary, taking decisions on issues where agreement cannot be reached within the class.
Issues which the rules must address include the following (Note 332)
:- |
|
|
|
|
* |
What should the criteria for recognition by
the court of a multi-party situation be |
|
|
|
|
* |
Who should be allowed in as members of the
group |
|
|
|
|
* |
To what extent can differences in the
interests of sub-groups of members be tolerated |
|
|
|
|
* |
Can agreement be reached as to the lawyers who
should represent the group, avoiding duplication of costs |
|
|
|
|
* |
How should the lawyers be supervised and given
instructions in the course of the proceedings |
|
|
|
|
* |
How should costs to be dealt with |
|
|
|
|
* |
Which members' cases should be selected as
lead cases to be tried |
|
|
|
|
* |
Which issues should be tried and in what
order |
|
|
|
|
* |
Should certain cases be removed from the
register as hopeless or too weak |
|
|
|
|
* |
How should offers of settlement be dealt with
|
|
|
|
|
* |
How should the proceeds of any settlement or
recovery be dealt with |
|
|
|
|
* |
What safeguards should there be for such
proceeds to be properly distributed |
|
|
390. |
These are all issues which, among others,
require forceful case management by the judge seized of the case. He would plainly have
conflicts to resolve. For instance, those with strong cases might wish to eliminate those
with weak cases from the proceedings for fear of them prejudicing their own claims. The
judge would have to decide whether a filter should be adopted and the criteria for
elimination. Where members of the group are unable to reach agreement on any particular
step to take, the court might have to direct the decision in the interests of the group as
a whole, overriding any remaining objections. The court would obviously have to be careful
that such proactive case management does not impinge on its actual or perceived
impartiality and its ability to try the case. |
Notes
331 |
WFR, p 223, §2(c).
<back> |
|
|
332 |
Lord Woolf discusses
the problems of multi-party situations at WFR, pp 225-6, §8-§14. Proposed responses are
considered at WFR, pp 226-249, §15-§87. <back> |
|