The empirical data under this heading were gathered from the European Commission Report "State of Collective Redress in the EU in the Context of the Implementation of the Commission Recommendation". You can reach the report from the link: Collective Redress Study for the European Commission
The following empirical data were gathered from two lawyers, one with experience of representing claimants and one with experience of representing both claimants and defendants. Their fields of expertise cover the following areas:
Field of expertise
The respondents do not have experience of bringing collective actions for injunctive relief and so their opinions are based on their experience of bringing claims for compensatory collective redress, particularly via the group action mechanism. The empirical data demonstrate that all of the respondents utilised collective procedures to gain compensation as the procedure can theoretically improve efficiency of proceedings, speed and lowered costs of litigation. Similarly, the respondents are of the view that collective actions are an effective method to obtain compensation as, as one respondent puts it, there is "much more potential to obtain substantial compensation through the pooling of people together."
However, the respondents' practical experience demonstrates that these benefits remain largely theoretical. The empirical data demonstrate that the respondents found some difficulty in gaining compensatory relief. The stakeholders were of the view that gaining compensatory redress in mass claims was 'very difficult'. One interviewee has commented that in light of the difficulties, he uses the joinder mechanism rather than the specific group action mechanism to resolve disputes.
How difficult have you found gaining compensatory redress in mass claims?
Stakeholders identify substantive and practical reasons for their choice. Substantive concerns are based upon the procedural and threshold difficulties experienced by respondents at different points of the group action proceeding. Substantive concerns for one respondent include the high burden for establishing liability and the restrictive interpretation of the commonality requirement. All respondents share a concern that the strict adherence to the formality requirements by the courts as well as the restrictive interpretation of who can be group representative is a difficulty.
Practical issues highlighted by respondents include the establishment of proof of damage at an early stage of proceedings. One respondent commented that for some types of claims, e.g. consumer law cases, there is a difficulty in stipulating with certainty the amount of damages without expert help. Finding experts on damages at this stage of proceedings is a burden. Other practical hurdles include administrative processes such as the requirement for each claimant to submit forms of acceptance.Other practical hurdles include issues in communicating with claimants, management of the group, difficulty in acquiring evidence from the defendant and the length of trial procedure.Additionally, the high costs involved in bringing claims appears to be an issue for stakeholders as all respondents deem collective proceedings as generally too costly and a disincentive to using a collective mechanism to resolve disputes.
However, despite issues with costs, 50% of the respondents perceive collective proceedings as advantageous in follow on collective actions for compensatory relief. In particular, the benefits of speed and greater efficiency of the procedure was identified as a reason for this opinion. In particular, the respondent representing claimants, highlighted the availability of a final public body decision (such as competition council) on liability an advantage.
As for locus standi of the group representative, the empirical data show that conditions for approval can be onerous on claimants. One respondent cited the requirement that letters of acceptance from all claimants required before group representative is accepted by court as evidence for this perspective. Additionally, one other respondent commented that "there is also a requirement that the entity needs to be active in the sector concerning the claim and have the interests covered by the claim as part of the scope of the entity's purpose i.e. included in the entirety's articles of association."
The empirical evidence demonstrates that stakeholders consider that there are practical advantages of having collective redress mechanisms. In particular, all the respondents are of the opinion that Lithuanian collective redress mechanisms improve access to justice and ensure fairness of proceedings.
Do collective actions ensure fairness of proceedings?
Is access to justice enhanced by collective redress?
All respondents acknowledge the potential beneficial effect of collective redress on claimants with limited damage. Stakeholders are of the view that bringing a "small" individual claim might not be worth the time and effort for most claimants, and a collective redress mechanism is useful to mitigate the consequence of this. As it concerns fairness of proceedings, one respondent is of the view that the opt-in nature of the group action and the rules of evidence balances the interests of all parties. However, the empirical data demonstrate that access to justice and fairness of proceedings is not fully realised.
If an opt-in regime is available, has it caused any particular problems in relation to?
Access to justice
Speed of proceedings
The substantive and procedural obstacles identified in the respondents' comments on compensatory collective redress were raised as reasons for their choices to this question. One respondent was also of the view that "courts are approaching the class action mechanisms in the same manner as they would individual claims. Furthermore, the strict evidentiary requirements disadvantage older claimants who would not necessarily have kept the evidence needed to join a claim."
As for the costs of proceedings, all respondents were of the view that contingency fees do not affect their decisions to bring collective claims. Similarly, court fees are not a deterrent. One respondent was of the view that the current approach to third party funding makes bringing a collective proceeding more likely.
The empirical data show a 50:50 split between stakeholders on their view as to the burden compensatory collective redress places on the courts.
Whilst both stakeholders point out that the burden should be theoretically less as multiple claims are disposed of in the proceedings. Each stakeholder proffers a different reason as to why this advantage is curtailed and the stakeholder representing both defendants and claimants is of the view that this tips the scale in favour of a 'more' burden. This stakeholder argues that in practice, if one party in a group wins' large damages then there is the likelihood of a switch to individual proceedings by the other group members. Furthermore, the stakeholder points out that as more time is required to be spent in preparation for proceedings and addressing the formalities questions, the burden can be in practice greater.
There seems to be a direct correlation with the respondent's answers to the above questions and to their response that there are aspects which can be improved in the group action mechanism.
Are there any aspects of the collective compensatory action procedure in your jurisdiction which could be improved?
One respondent is of the view that there should be a presumption of damages at the outset of proceedings, rather than having a claimant prove quantum. All respondents are of the view that the restrictive approach taken by the courts to issues such as admissibility and certification should be relaxed and that the courts should treat not collective claims with the same formality that they treat individual claims.
The empirical data show that all respondents are of the view that it is possible to seek an injunction and compensation within a single action. However, the injunction in this case is of a preliminary type but can be used in a subsequent individual action for damages.It is practice however, that the injunction and compensation proceedings are split. One respondent was of the view that this increases efficiency of the individual proceedings as the injunctive order helps to establish liability.
As for the availability of information on collective proceedings, one of the respondents was of the view that whilst there is sufficient information that a collective redress mechanism exists, the level of information can be better as it is not always possible to find information due to limited public awareness.
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