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Group personal injury litigation and public opinion
Published online by Cambridge University Press: 02 January 2018
Extract
From within the law school, group personal injury litigation may be approached in various ways. Until very recently it was, indeed, ignored as an irrelevant foreign development: not perhaps ‘it could never happen here’, but at least ‘it hasn’t happened here, yet’. Now that it plainly has happened, it is nonetheless possible to ignore it. The question whether the snail in my ginger beer bottle can give rise to an action is not, in principle, affected by what other people found when they opened theirs; if it is said that in practice it cannot but be affected, the retort would be that the law schools need not concern themselves with the sort of practicalities involved. Indeed, group litigation barely rates a mention in most practitioners’ texts either; so many academics feel excused from considering it all, even as a mere footnote to the general run of cases.
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References
1. The terminology has not yet stabilised on ‘group action’, ‘multi-party litigation’, ‘mass action’ or ‘class action’, and there is often confusion with the ‘representative action’ procedure mentioned in n 29 (below). Some group actions have involved issues other than personal injuries, notably the actions by the Lloyds ‘names’ and by victims of phantom cash point withdrawals.
2. [1932] AC 562. Cf William W McBryde, ‘Donoghve v Stevenson: The story of the “Snail in the bottle” case’ in Alan J Gamble (ed), Obligations in context (1990, Edinburgh).
3. See eg Nettship v Weston [1971] 2 QB 691.
4. Eg Third Parties (Rights against Insurers) Act 1930.
5. Note particularly Lister v Romford Ice and Cold Storage Co [1957] AC 555.
6. See eg ‘Abuse cases prompt scheme to insure social workers’, The Guardian, 21 September 1992: ‘Catholics insure over child abuse’, The Daily Telegraph, 31 May 1993.
7. Compare Peter Cane Atiyah's Accidents, Compensation and the Law (4th edition 1987, London) p 225.
8. Marc Galanter, ‘Why the “haves” come out ahead: Speculations on the limits of legal change’ (1974) 9 L&SR 95; Donald Harris et al Compensation and Support for Illness and Injury (1984, Oxford); Hazel Genn Hard Bargaining: Out of Court Settlement in Personal Injury Actions (1987, Oxford).
9. See Hazel Genn, op cit pp 7, 62–43.
10. Hazel Genn, op cit pp 8, 35–37, 40, 45. Genn also suggests that insurers promote more efficient working practices amongst solicitors working for them: op cit pp 36, 52,65–66. On recent moves to push solicitors acting for plaintiffs towards greater specialism see ‘Specialist watch’ [1993] 22 LSG 12; ‘Medical negligence panel’ [1993] 23 LSG 10.
11. Hazel Genn, op cit pp 41–42. On incentives to delay generally see Timothy, M. Swainson ‘A review of the civil justice review: economic theories behind the delays in tort litigation’ (1990) 43 Google Scholar CLP 185, 195–205.
12. Plaintiffs' solicitor, quoted by Hazel Genn, op cit p 103.
13. Peter Cane, op cit pp 263–266.
14. On this development see generally David, Rosenberg. Class actions for mass torts: doing individual justice by collective means’ (1987) 62 Google Scholar Indiana LJ 561; Glenn, H. Patrick. ‘The dilemma of class action reform’ (1986) 6 Google Scholar OJLS 262.
15. For example the Sellafield action (‘Nuclear battle’ [1989] 38 LSG 7), and the actions by tobacco smokers (‘Lawyers seek smokers for test cases against cigarette firms’, The Guardian, 4 July 1992). Compare Nancy T Bowen, ‘Restrictions on communication by class action parties and attorneys’ [1980] Duke LJ 360. See further n 72 (below).
16. Bryde, William Mc. and Christine, Barker. Solicitors' groups in mass disaster claims’ (1991) 141 Google Scholar NLJ 484; ‘Solicitors try to limit disaster’, Thc Indewmf, 15 January 1993.
17. Action for the Victims of Medical Accidents, founded 1982, on which see Richard, Barr. Action for victims of medical accidents’ [1990] 24 Google Scholar LSG 31.
18. Association of Personal Injury Lawyers, founded 1989, on which see ‘Association of Personal Injury Lawyers’ [1990] 42 LSG 49.
19. Founded 1987; on which see Supreme Court Procedure Committee Guide for Use in Group Actions (1991, London) pp 44–45.
20. Conversely, it is sometimes a term of settlement that no more members join the class. See Note, ‘Conflicts in class actions and the protection of absent class members’ (1981) 91 Yale LJ 590; John, C Coffee. ‘Rethinking the class action: a policy primer on reform’ (1987) 62 Google Scholar Indiana LJ 625. Conflict-of-laws problems within the UK are relatively infrequent, and less likely to divide the class of plaintiffs than in the US.
21. On APIL's database of experts see Frank Hanna ‘The rise of the super expert’, in ‘Expert Witnesses’, supplement to (1993) 137 SJ (no 21).
44. As in the Piper Alpha case: see Williams and McBryde (above) at 487. On defence-led groupings of plaintiffs see Carol Harlow and Richard Rawlings Pressure Through Law (1992, London) p 126.
43. Compare Mary Kay Kane ‘Of carrots and sticks: evaluating the role of the class action lawyer’ (1987) 66 Texas LR 385.
44. As in the tobacco smokers' action: ‘Firms block aid for legal suits’, The Independent on Sunday, 7 February 1993; ‘Law firms refused legal aid challenge LAB’ (1993) 137 LSG 900.
25. ‘Ruling could saddle lawyers with costs of dropped cases’, The Guardian, 11 February 1993.
26. See ‘Opren settlements refuseniks in court over legal aid refusal’, (1988) 138 NLJ 890.
27. Eg Roger H Trangsrud ‘Mass trials in mass tort cases: a dissent’ [1989] v Illinois LR 69.
28. For claim and counter-claim here see David McIntosh ‘When the only winners are the lawyers’, The Times, 6 April 1993; Richard Barr, Richard Meeran and Martyn Day ‘Don't blame lawyers who take on giants’, The Times, 20 April 1993.
29. ‘Representative’ actions are recognised under Ord 15, r 12, but ever since Markt & Co v Knight Steamship Co [1910] 2 KB 1021 it has been the orthodoxy that this procedure cannot be applied to actions for damages; though see Bank of America National Trust and Savings Association v Taylor [1992] 1 L1 484. The current rules (Supreme Court Practice 1993, 1992, London) discuss group actions under the heading ‘Procedure in group or multi-party litigation’ (p 230). See Horrocks v Ford Motor Co, The Times, 15 February 1990.
30. National Consumer Council Group Actions: learning from Opren (1988, London).
31. See Group actions: learning from Opren (above) pp 25–34; ‘Group action needed for disasters’(1989) 139 NLJ 103.
32. Above, n 19.
33. Compare Glenn, H. Patrick., ‘Class actions and the theory of tort and delict’ (1985) 35 Google Scholar U Toronto LJ 287, 296–304.
34. Compare Michael, J Saks. and Blanck, Peter David., ‘Justice improved: The unrecognised benefits of aggregation and sampling in the trial of mass torts’ (1922) 44 Google Scholar Stanford LR 815.
35. Compare Alan, Strudler. Mass torts and moral principles’ (1992) 11 Google Scholar Law and Philosophy 297.
36. See eg Ashmore v British Coal Corporation [1990] 2 All ER 981: action by 1,500 female catering staff for equal pay, where one claimant's tactics, though permissible if she were on her own, were considered an abuse of process in the context of the group litigation. The Law Commission are currently considering whether a single ‘global’ sum might be awarded to a group, and whether rules on punitive damages need correction (5thprogramme of law reform, Law Corn No 200, Cm 1556, June 1991; Aggravated, exemplary and restitutionary damages, Consultation Paper No 132, October 1993).
37. ‘PI lawyers told to raise standards’ (1993) 143 NLJ 1018.
38. Civil jury trial declined generally after the Common Law Procedure Act 1854. See Ward v James [1965] 1 All ER 563; Hodges v Harland & Wolff Ltd [1965] 1 All ER 1086. On recent, unsuccessful attempts to reintroduce juries see ‘Sex assault victim drops jury hearing’, The Guardian, 10 November 1989; ‘Lawyers plead for juries’, The Times, 6 May 1992.
39. See eg Alan, Reed. The end of the line for exemplary damages?’ (1993) 143 Google Scholar NLJ 929.
40. See Donald Harris et al, op cit, ch 3.
41. Peter Cane, op cit, p 467. For a rather more sophisticated discussion of what plaintiffs want, and of how this relates to the aims legal textbooks tend to attribute to plaintiffs, see Donald Harris et al, op cit, ch 4.
42. Michael, Zander., ‘What litigants think of the tort system’ (1989) 139 Google Scholar NLJ 1422.
45. Donald Harris et al, op cit, especially ch 4.
44. Peter Cane, op cit pp 201–204, 311–312; Donald Harris et al, op cit, ch 2.
45. Hazel Genn, op cit pp 7, 14, 39–40, 51, 62–63.
46. See, generally, Marc Galanter ‘Law abounding: legalisation around the North Atlantic’ (1992) 55 MLR 1.
47. For estimates of the number of potential personal injury claimants see Peter Cane, op it, pp 20–25, 191–201, 204–209, 256–257.
48. For US comparison see Power, Richard W. An essay on tort litigation and the media’ (1987) 40 Google Scholar Oklahoma LR 35.
49. See Roger Cotterrell The Sociology of Law (1984, London) pp 262–268.
50. On health and safety (and other) matters as ‘real crime’ see Roger Cotterrell, op cit pp 271–288; Nicola Lacey et al Reconstructing Criminal Law: text and materials (1990, London), passim.
51. Compare Davies and another v Eli Lilley & Co and others [1987] 1 All ER 801.
52. And of course where liability is absolute it can be avoided altogether. In practice, it seems that the need to prove causation is far more demanding than any fault requirement.
53. On choice between possible fora see Patrick, Allen. Plaintiffs and the media’ (1990) 140 Google Scholar NLJ 1530. An exceptional case fought in several fora was that over the sinking of The Herald of Free Enterprise, off Zeebrugge, which ultimately led to a settlement on damages, a coroners' inquest, an official report on the incident, and unsuccessful prosecutions for manslaughter.
54. On this aspect of tort see Richard, Tur. Litigation and the consumer interest; the class action and beyond’ (1982) 2 Google ScholarLS.135
55. See for example Peter Cane, op cit, pp 489–542; Donald Harris Remedies in Contract and Tort (1988, London) pp 189–192.
56. See Michael Zander ‘What litigants think of the tort system’ (above); Tom R Tyler ‘A psychological perspective on the settlement of mass tort claims’ (1990) 53 L & Contemp Prob(No4) 199.
57. Note especially the Guide for Use in Group Actions (above).
58. Note especially modifications to legal aid rules following the Opren case, first promoted unsuccessfully by the Law Society (see HL Deb vol 492, cols 90–107,19 January 1988), and then by the government (see ‘Breakthrough for plaintiffs in multi-party litigation’ (1992) 136 SJ 279).
59. See, eg Roger Cotterrell, op cit pp vi, 9–10, 15, 40–41. Given the pervasive influence of trade unions in finding plaintiffs and funding their actions, it is surprising that while they have been behind some group actions (for example the asbestosis claims) they seem to have exercised no great influence in the development of the law.
60. Roger Cotterrell, op cit pp 108–109.
61. On cross-Atlantic links see eg'Association of personal Injury Lawyers' [1990] 43 LSG 49. A key figure here is Rodger Pannone: see ‘Pannone Napier: developing a disaster practice’ (1986) 136 NLJ 783; ‘Good man in a crisis’, Sunday Times Magazine, 29 March 1987, at 70. For an international perspective on group litigation see Jamie Cassels The uncertain promise of law (1993, Toronto).
62. See for example ‘Good man in a crisis’ (above); ‘Solicitors’ groups in mass disaster claims' (above).
63. Generally speaking there is little evidence of co-operation between different national groups, though occasionally foreign developments can stimulate domestic ones: see for example ‘US tobacco case sparks campaign’ (1992) 142 NLJ 922
64. For example ‘Ambulance-chasers: cash from chaos’, Time Ouf, 4 October 1989, p 24.
65. See for example ‘For the victim’ [1993] I LSG 11.
66. On the connection between group actions and contingent fees see for example Ferrier Charlton ‘Place your bets’ [1993] 26 LSG 19. Of course, where the client is of modest means, there may only be a technical difference between working on a fixed rate basis and working on a contingent fee basis.
67. It need perhaps hardly be added that the elevation of Rodger Pannone to President of the Law Society has put paid to any doubts about the respectability of group actions.
68. See ‘For the victim’ (above). See, however, material at n 72 below.
69. Both the law of contempt and the need to maintain client confidentiality might seem in theory to place severe restrictions on the use of the press in civil actions; but in practice these barriers seem surmountable.
70. ‘How to press your case’, The Times, 3 April 1990. The five were Vanni Treves, Rodger Pannone, David McIntosh, Ben Hytner QC and Peter Carter-Ruck.
71. See for example Chris Over ‘The media- friend or foe’ (1991) 135 SJ 7; Ole Hansen ‘Lawyers and the media’ (1991) 141 NLJ 1363.
72. On controversies here see for example ‘Speculative funding “the only way to get cases started”‘(1989) 139 NLJ 211; ‘Ambulance chasers: cash for chaos’, Time Out, 4 October 1989; ‘It's one way to get a client’, The Daily Telegraph, 3 September 1993; ‘Ambulance chasers in the UK’ (editorial) (1993) 137 SJ 875.
73. See eg, William McBryde and Christian Barker (above), 487.
74. And of course a government that will soon be seeking re-election will be in a weak position too, especially if its opponents are sympathetic and blameless victims. See for example ‘Minister admits pressure key to HIV compensation’, The Obserner, 16 June 1991; and in the context of that litigation note the great pressure brought to bear by a remark of Ognall J (in an interlocutory hearing) that a failure to settle for a substantial sum would be ‘unjust and inhumane’, which remark was duly leaked to The Sunday Times: see ‘HIV litigation’ (1990) 140 NLJ 1375.
75. See eg, ‘Media fault warning’ (1988) 138 NLJ 696; David McIntosh ‘Defending trial by media’ (1990) 140 NLJ 1224.
76. ‘Defence lawyer urged to exploit the media’ [1993] 3 LSG 9; ‘Defending the defence’ [1993] 28 LSG 8. On defence use of the media generally see Carol Harlow and Richard Rawlings, op cit, pp 189–196.
77. Issues of status between rival firms of solicitors are also not unimportant here: up-and-coming Northern firms (eg Pannone Napier) versus established City firms (eg Davies Arnold Cooper).
78. See for example Barry D Ricketts ‘Solicitors versus activists’ (1987) 131 SJ 584; ‘British media overly pro-plaintifl, claims Opren lawyer’ [1988] 35 LSG 5; David McIntosh ‘Defending trial by media’ (above).
79. See for example Patrick Allen ‘Plaintiffs and the media’ (1990) 140 NLJ 1530.
80. Eg, David McIntosh ‘When the only winners are the lawyers’, The Times, 6 April 1993; Richard Barr, Richard Meeran and Martyn Day ‘Don't blame lawyers who take on giants’, The Times, 20 April 1993.
81. In this article 1 concentrate on the role of the national broadsheets. The tabloids and the broadcast media seem relatively unimportant in this connection. The local press is said to be of great use in appropriate cases. For a US comparison see Richard W Power, ‘An essay on tort litigation and the media’ (1987) 40 Oklahoma LR 35, which treats TV as the most important medium.
82. On the case generally see JG Fleming ‘Mass torts’ [1988] Denning LJ 37, 37–41; The Sunday Times v UK [1979] 2 EHRR 245;‘Thalidomidetrioopen test case for more cash’, The Sunday Times, 4 July 1993.
83. Though see eg, ‘Eyeless babies: now Dutch plan review of suspect fungicide’, The Observer, 13 June 1993.
84. See eg, ‘Britain tops the list for danger at work’, The Observer, 21 June 1992; ‘The deadliest roads in Europe’, New Scientist, 24 October 1992, p 23; ‘More workdays lost to injury than strikes’, The Independent, 3 December 1992.
85. Remark attributed to Peter Bottomley MP, in ‘Sideliners’, New Statesman and Society, 7 May 1993, p 24.
86. On the distortions that may result when people campaigning through the press find that their press image diverges substantially from the reality see ‘The keepers of the flame’, The Guardian, 12July 1993 (supplement), p 10.
87. The rig workers, being relatively specialised and only somewhat glamorous industrial workers, had not earlier been much in the public eye, despite great dangers to their health and safety. See generally WG Carson The Other Price of Britain's Oil (1982, Oxford); Kenneth Miller ‘Piper Alpha and the Cullen Report’ (1991) 20 ILJ 176.
88. On this point see ‘Easing disaster victims' trauma’ [1989] 38 LSG 6, especially remarks attributed to Kate Adie. Press behaviour in the aftermath of the Hillsborough Stadium tragedy seems to have gone far beyond what was acceptable to many of the victims’ families: see ‘Relatives “need media guidance”’, The Guardian, 9 December 1992.
89. On this point see Stanley Cohen and Jock Young The Manufacture of News (1981, London) at 37–39.
90. Ulrich Beck (trans Mark Ritter) Risk Society: Towards a new Modernity (1992, London; published as Risikogesellschuft: Auf dem Weg in cine andere Moderne, 1986, Frankfurt) p 36 (emphasis in original); and see generally ch 1. In connection with medical risks, the existence of the NHS is an important symbol of democratisation here.
91. In this connection see especially Patrick Allen ‘Plaintiffs and the media’ (above); ‘BR braced for claims over faulty doors’, The Times, 21 May 1992; ‘Bill seeks to outlaw most advertising for tobacco’, The Daily Telegraph, 28 January 1993.
94. See ‘Keep safety trials secret, say drugs companies’, New Scientist, 9 January 1993, p 5; ‘MPs fight news gag in right-to-know bill’, The Guardian, 15 February 1993.
93. On the uncertain implications of the government's recently-announced intention to ‘deregulate’ health and safety law see Fraser Whitehead ‘A cure for all ills?’ [1993] 44 LSG 11.
94. See eg, Richard Meeran ‘Genetic damage: attaining scientific proof’ [1992] 6 LSG 17.
95. ‘The baby scales of justice’, The Guardian, 3 November 1992.
96. At the time of writing, the scientific group action par excellence is the Sellafield leukemia action. Success for the plaintiffs in this case would have had consequences far outside its immediate context, as there are several other group actions pending which also rely on largely statistical techniques to prove genetic damage. French J's rejection of the claim (reported as Hope v British Nuclear Fuels, The Guardian, 15 October 1993) seems to have avoided any statement of principle on the legal significance of statistical tests, concentrating rather on weaknesses in the single study on which the plaintiffs relied.
97. See Ulrich Beck, op cit, especially at pp 62–66, 155–170. There is of course a shadow parallel economic argument, as to whether technology can develop in beneficial ways without the subsidy consisting of (at least partial) immunity from actions for development risks: see David Rosenberg ‘Class actions for mass torts: doing individual justice by collective means’ (1987) 62 Indiana LJ 561, 575–579.
98. See especially Alan Strudler ‘Mass torts and moral principles’ (1992) II Law and Philosophy 297. For UK developments see Richard Meeran ‘Problems of causation in environmental personal injury’ (1992) 136 SJ 804.
99. See eg, Kevin Williams ‘Compensation for accidental shootings by police’ (1991) 141 NLJ 231.
100. See for example ‘Lawyers fear rape and assault victims will get less cash’, The Times, 6 May 1993; ‘Victims of crime face cut in payouts’, The Observer, 16 May 1993.
101. See eg, ‘How victims’ cash is cut', The Independent on Sunday, 20 December 1992; Fiona Bawdon ‘Putting a price on rape: increasing compensation awards’ (1993) 143 NLJ 371.
102. See ‘HIV blood victims to share £12m payout’, The Guardian, 18 February 1992; and note also the support this engendered for the (unsuccessful) back-bench attempt to introduce no-fault compensation for accidents occurring on the NHS: ‘Waldegrave offer on no-fault bill’, The Times, 24 January 1991. Compare the (so far unsuccessful) attempts to secure a settlement in the highly analogous cases where the use of human growth hormone has led to Creutzfeldt-Jacob disease: ‘Solicitors urge government to compensate hormone victims’ [1992] 31 LSG 7;‘MPs in plea for virus victims’, The Guardian, 24 February 1993; ‘Strong moral case for CJD compensation’ (editorial), The Independent, 3 September 1993.
103. The liability here only exists because of a substantial campaign to bring this about. For successful use of the press here see the case of Kirk Sancto, where discovery of a relevant report was refused by the trial judge, who however added such a stinging rebuke for sticking to the letter of the law that the government agreed to pass on all such reports voluntarily in future: ‘MOD to release death reports’, The Guardian, 9 December 1992; ‘Parents who won fight over soldier's death win award’, The Guardian, 21 January 1993.
104. Richard Barr ‘Improving PI damages’ (1991) 135 SJ 76.
105. Richard W Power ‘An essay on tort litigation and the media’ (1987) 40 Oklahoma LR 35. 37.
106. Compare ‘C4 film “pulled”’ (1993) 137 SJ 578.
107. On this see Marc Galanter ‘Law abounding: legalisation around the North Atlantic’ (1992) 55 MLR 1, 22–23.
108. See ‘“No win, no fee” carries PR risk’ [1993] 43 LSG 6.
109. See eg, Patrick Griggs ‘The disaster lottery’, The Times, 13 October 1992. I suspect that this article, written by a prominent lawyer, would be read in a rather different sense from that intended by all but the most attentive lay readers.