Representative Actions
Pursuant to RsCJ: Where numerous persons have the same interest in any proceedings… the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
At any stage of proceedings the Court may, on the application of the plaintiff or on such terms as it thinks fit, appoint one or more of the defendants to represent all defendants or remove one or more. Where the Court appoints a person not named as a defendant, it shall make an order adding that person as a defendant.
Any judgment or order given is binding on all the persons sued but is not enforceable against any person that is not a party to the proceedings except with the leave of the Court. Pursuant to the Rules an application for the grant of leave must be served personally on the person against whom it is sought to enforce the judgment or order. The Court hearing an application for the grant of leave may order the question whether the judgment or order is enforceable against the person against whom the application is made to be tried and determined in any manner in which any issue or question in an action may be tried and determined.
A person against whom an application is made may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability.
Test cases
When mass actions are brought, the subject matter is varied.
In 2018 a mass action was brought by a group representing more than 3,700 police officers and civilian staff regarding circa £40million in disputed holiday pay.
There has previously been a mass action for post-traumatic stress by members of the Royal Ulster Constabulary police force (RUC) following their time working in the RUC during the Troubles in Northern Ireland.
More recently in 2023, there was a class action against the government over the NI Protocol heard in the UK Supreme Court.
Is a disclosure and/or discovery mechanism given in the group action regulation?
Yes. The existing mass actions procedures available in Northern Ireland share a number, albeit not all, of the features required of collective redress under the Directive. There are detailed rules in the Commercial Hub on discovery of documents as set out in Practice Direction No 1 of 2022 Commercial Hub, Para 28-29.
How easy is it to access litigation funding?
The vast majority of large commercial disputes are privately funded by the parties themselves. While third party litigation funding is permitted in Northern Ireland, it is not commonly used.
There is limited availability of after-the-event insurance, which is an insurance policy taken out after the event that is the subject matter of the proceedings and covers some or all of the potential costs liabilities in those proceedings. Parties may also have other insurance policies that cover litigation costs and it is generally advisable to seek advice from an insurance broker.
In general, representative actions are funded in the same way as other litigation.
'No win, no fee' contingency fee arrangements are not permissible in Northern Ireland; third party litigation funding is permissible; and after-the-event insurance (ATE) to cover liability for a defendant's legal fees is available.
Are there group action opt-out procedures in place?
Currently, representative actions are "opt-in" proceedings.
What is the status of the implementation of the EU’s Representative Action Directive?
Given the UK's departure from the EU, the current position is that Northern Ireland is not required to implement the RAD.
However, the RAD may create a wave of interest and therefore increase the uptake of class actions in Northern Ireland: there is already provision for such actions under the current court rules.
To what extent are ESG and related commitments prevalent within large businesses?
ESG is central to business and all organisations in Northern Ireland.
