# How do test cases work in Ireland?



## Brendan Burgess (14 Sep 2012)

One advantage of the High Court over the Ombudsman is that a test case may be brought. I am trying to understand how they work in the context of a complaint against a financial services provider. 

Here is a description of one on the PTSB RIP borrowers. 



> A GROUP of homeowners who don't want their bank to switch their  mortgages from interest-only have taken their case to the High Court.
> Seventy-four  sets of proceedings have been launched against Irish Life and Permanent  TSB after the bank announced last year it was going to make the  homeowners pay back the capital on the loan as well as the interest.
> 
> 
> ...


A firm of solicitors in Cork are taking test cases against AIB for the 

[broken link removed]



> the Irish Commercial Court, a division of the High  Court, is  currently case managing four Madoff related proceedings and  has ordered  a stay on in excess of 50 further Madoff related  proceedings, pending a  resolution of the four proceedings.


*If the test cases win, each plaintiff must take their own case anyway. *
We do not have class actions in Ireland. So each case is judged separately on its merits. However, a ruling of the High Court forms a precedent for subsequent cases. 
However, the case will be simpler as a key point will have been decided. 
It's likely that the financial services provider will settle the claims early knowing that they will lose the case and costs in the courts or the plaintiffs may decide to withdraw their cases in the light of an unfavourable ruling.

*The Financial Services Provider may settle the test cases before they reach court 
*A  Financial Services Provider does not want to lose a High Court case which sets a precedent for other claimants. The High Court case will also generate awareness amongst customers affected by the issue, who would otherwise be unaware of it. Even if they expect to win the case, they may agree to settle with all those involved in the test action and their supporters subject to them signing a confidentiality agreement. So the solicitor representing the claimants would decide which of their clients should be covered by the settlement. 

*Might I miss the time limit on making a claim if the High Court case is delayed? 
*In general, a plaintiff must initiate a civil case within 6 years of the alleged breach of contract.  This is a fairly tight deadline if the claimant is hoping to rely on other cases. Presumably the solicitor for the group will issue proceedings in all cases to make sure that they are covered by any group settlement. 

*Does the High Court prioritise test cases? *
The High Court wll put other cases on hold while it waits to determine a test case. I don't know if they give a priority to test cases. I presume that the defendant would seek to delay the test case as long as possible. 

*What about the hundreds of other cases who could benefit from the ruling who do not contribute to the costs?*
They get a free ride. But they may not be aware of the case or they may not be covered by any group settlement. If you feel that you have a good case, you should join the test case. 
*
What is a "pathfinder case"? *


> Judge Murphy ruled that two cases already at an advanced stage of  preparation would go ahead and two more cases could act as '*pathfinder  cases'.*


*
Funding the test case
*Generally, the solicitor will require each of the plaintiffs to make an up-front payment to cover their fees. They will also require an undertaking to contribute to the costs of the other side if the case is lost.  While costs will vary depending on the type of case and the numbers involved, typically, those supporting the test case will pay €2,000 up front and agree to pay up to a further €3,000 if the case is lost. This is a lot cheaper than the costs of losing an individual case.


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## Brendan Burgess (14 Sep 2012)

*[FONT=&quot]The Law Reform Commission did a consultation paper on Multi Party Litigation back in 2003. Chapter 1 summarised Irish Law and Practice 

Here is the most relevant extract

(2[/FONT]**[FONT=&quot])            Test Cases[/FONT]*

[FONT=&quot]1.31      Under current Irish practice, the preferred approach to multi-party actions is the test case.  Where several separate claims arising out of the same circumstances are pending against a defendant or defendants, the first case to be litigated becomes the benchmark by which the remaining cases are resolved.  Technically, the subsequent plaintiffs and defendants,[/FONT] 
[FONT=&quot]not being parties to the original litigation, are not bound by the result.

[/FONT][FONT=&quot]However, the resolution of the test case influences the conduct of future litigation in both a formal and an informal sense.   The test case has a formal effect by virtue of the doctrine of precedent in that the benefits of the original ruling may be extended to cases involving factual situations that are on all fours.   More informally then in practice the subsequent litigation is usually settled on the basis of the result in the original case. The extent to which the test case serves as a benchmark for subsequent proceedings varies depending upon the nature of the action and the prevalence of common claims among the putative plaintiffs.  The matter is  straightforward  where  the  original  ruling  declares  a  legislative  or[/FONT]  [FONT=&quot]administrative act to be unconstitutional[/FONT][FONT=&quot]and, at the other end of the scale,   considerably   more   complicated   where   there   is   a   need   for[/FONT] [FONT=&quot]i[/FONT][FONT=&quot]ndividualised assessments of damages.  The test case approach was used[/FONT] [FONT=&quot]t[/FONT][FONT=&quot]o resolve many of the numerous claims filed against the State in relation to army deafness.  A more recent example is a successful claim against an        obstetrician        for         negligence         in           carrying             out         an          unnecessary hysterectomy during childbirth

[/FONT]
[FONT=&quot]1.32      Notwithstanding the significance of the test case in the Irish civil justice system, there are several drawbacks to this approach as a means of resolving multi-party claims.   First, because the test case is conducted and adjudicated exclusively on its own merits and without regard to the broader  class  perspective,  it is essentially  an  individualised  means  of resolving collective grievances.  The test case plaintiff acts solely on his own behalf and without regard to the interests of the plaintiffs in pending or future actions.  Potential plaintiffs, for their part, are not notified of the[/FONT] 
[FONT=&quot]  [FONT=&quot]proceedings and may only learn of their existence, if at all, through media reports of the outcome.  Consequently, the ability of subsequent plaintiffs to influence the conduct and resolution of their claims is compromised to a greater or lesser extent.[/FONT][FONT=&quot]   [/FONT][FONT=&quot]Th[/FONT][FONT=&quot]e test case may simply allow the defendant [/FONT][FONT=&quot]t[/FONT][FONT=&quot]o present subsequent plaintiffs with a settlement offer as a virtual _fait accompli.  _Further difficulties ensue where the plaintiff’s claims are not typical of the class or do not present a particularly suitable vehicle for the testing of common issues.[/FONT]

[/FONT][FONT=&quot]1.34      Thirdly, the test case approach may be less of a boon in terms of judicial economy than popularly imagined.  The benchmark provided by a test case clearly reduces the length and cost of subsequent proceedings principally by narrowing the range of disputed issues and promoting settlement.   However, the test case does not obviate the need for each subsequent  plaintiff  to  file  an  action  which  is  then  processed  by  the courts in the conventional  way.       In other words, although subsequent cases may be simplified, their number is not reduced; in fact, one might argue  that  the  publicity  surrounding  a  test  case  invites  litigation  and raises unrealistic expectations on the part of potential litigants.[/FONT]


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## frustrated (24 Sep 2012)

*test case*

could somebody provide me with contact details for Cork Solicitor


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