Our Passion Project: Advocating For Increased Access To Justice

by | Jan 23, 2025 | Media Coverage

Ireland’s minimalist approach to class actions won’t move the dial for victim groups here.

The O’Toole Scoping Report on abuse in religious order schools made for extra hard reading for lawyers due to its verdict on our legal system. For survivors, our legal system – what the report calls our “justice system” – doesn’t fulfill a basic function: deliver justice. Worse, both civil and criminal cases can be re-traumatizing for the victim.

Describing “participants’ experience of the justice system,” the report states that most survivors who spoke had a negative experience. One said his civil lawsuit “nearly killed me [and] achieved nothing.” Another described cross-examination as “character assassination.” The “whole judicial system was very unfriendly.” Cost was also a “significant factor preventing survivors” from accessing our legal system.

This is not new. In an important 2018 ruling, the then chief justice, the most senior member of our judiciary, Frank Clarke, spoke of “a significant and, arguably, increasing problem with access to justice.” Speaking directly to the legislature, he said, “There is, I believe, a problem which requires to be addressed.”

There are two things the Government could do to fix this. First, amend order 16 rule 9 of the Rules of the Superior Courts 1986, which already allows class actions by “numerous persons having the same interest,” to clarify it permits damage awards, as the Law Reform Commission recommended in 2003.

Second, legislate to allow a regulated and fair system of third-party funding. Right now, because we have neither a system of class actions nor third-party litigation funding, Irish victim groups without means have really two ways only to fight for justice.

One way, as with the Stardust families and school abuse survivors, is to campaign for decades for, at best, a State apology plus a redress scheme. An important cathartic reckoning, when (or if) it happens, to be sure. But quite apart from the enormous personal cost for campaigners, survivors, as in the school abuse cases, are exposed to legal risk and may not contribute to wider societal change.

A second way is to resort to the “test case” approach, as has been the experience of school abuse survivors, including the 1970s cases involving boarding school abuses by Christian Brothers, with legal aid made available for “test cases.” But the “test case” approach for victims of historical abuse is imperfect on many fronts. A single plaintiff takes sole litigation risk, meaning potentially enormous cost exposure. A test case outcome on total damage quantum or who should win could deny victims’ rights to compensation. And they can be forced to yield anything for other parties to negotiate with, especially hardball, behind-closed-doors negotiation between lawyers based on practice, best suited to coercing the State to defend a test case, to protect its own interests.

In 2003, following a modern class action and funding review, the Law Reform Commission recommended a “class action” approach in response to the “adversarial system,” one which mirrors successful class-action systems in modern common-law jurisdictions.

What we need to find are new legal ways to allow victim groups to experience this; our courts directly holding those liable to compensation for historic abuses.

In an adversarial system such as ours, cross-examination can be hostile, for sure. But let’s not forget that cross-examination is also widely considered “the greatest legal engine ever invented for the discovery of truth.” A bona fide class of victims, with strength in numbers and solidarity in purpose—such as 2,400 abused people across 300 schools, say—will surely be better equipped to deal with the challenges of litigating than a single “test case” litigant.

On this, the O’Toole Report describes survivors “finding strength in shared experiences” and “strength and resilience” in solidarity.

In my practice area, anti-trust law, class actions are permissible in most EU member states and many common-law jurisdictions. In the UK, 44 million Facebook users are suing Mark Zuckerberg’s Meta for €2.6 billion. App developers are suing Google for €1.04 billion. And sellers are suing Amazon for €3 billion.

Ireland’s minimalist approach to implementing rules to promote class actions to protect against anti-consumer business practices, in the form of The Representative Actions for the Protection of the Collective Interests of Consumers Act 2023, won’t move the dial for victim groups here.

But there’s hope. According to our Supreme Court, “the constitutional right of access to the court may include an entitlement that that right be effective, not just as a matter of law and form, but also in practice.” Absent Government action, the Supreme Court has also said that “the courts, as guardians of the Constitution, might have no option but to take measures which would not otherwise be justified.”

Philip Andrews is a senior counsel and founder of Andrews Law