During the 1970s and 1980s courts were required to cope with an increasing number of complex multi-party or group actions.

There were a number of reasons for this: numerous major disasters such as the King's Cross fire and the Channel ferry sinking at Zeebrugge; an increase in the number of consumer products distributed internationally; a growing public awareness of the ability of consumers and accident victims to use the courts for redr ess and the increasing sophistication of specialist lawyers in researching, bringing forward and organising potential claims.In England, the courts have had to cope with this new type of complex claim without any new procedures or guidelines.

Individual judges have developed methods of guiding group actions, but in an ad hoc way, adapting procedures designed in another era for the impartial adjudication of disputes between individual litigants.

The Supreme Court procedure committee produced a 'Guide to group actions' in May 1991, but this merely described the 'state of the art' at that time and did not propose any radical changes.

Unlike those of many other jurisdictions, the UK courts have no specific class action procedure.

The rules of court do allow for representative actions but, in practice, these have been seldom used.

Only very rarely will the claim of one individual be truly 'representative' in the sense which the order requires.If tens, hundreds, or even thousands of claimants with closely related claims seek redress in the courts, each person has to issue an individual writ or summons within the limitation period.

Their lawyers and the court must then decide whether the claims are to be pursued separately or collectively and, if it is the latter, how this can be done.

The judge has to decide how 'hands on' his or her approach to controlling the litigation can be.

Even where the more straightforward claims are settled or litigated to a conclusion, argument over costs then gives rise to a whole new industry of multi-party taxations.

There are no clear ground rules for cost sharing, even between the plaintiffs, let alone for resolving the costs liability of what could be several defendants.Benzodiazepine fiascoAgainst this background, a surprising number of group actions have been brought to trial or settlement, including several disaster claims and some drugs cases.

Both the Opren and, more recently, the Myodil claims have been settled with agreed awards of compensation.

Yet these 'successes' have been over-shadowed by the poor publicity surrounding claims that have collapsed.

A notable example is the Benzodiazepine litigation in which the Legal Aid Board decided to discontinue funding when the Court of Appeal refused leave for the action to be extended to include as defendants those who had prescribed the drugs.

There remains a possible claim to the European Court of Human Rights, but at present it seems likely that the public purse will have to bear estimated costs of about £30 million.

This case in particular prompted the Legal Aid Board to review multi-party actions in its May 1994 report 'Issues arising for the Legal Aid Board and the Lord Chancellor's Department from multi-party actions'.

The report criticised plaintiffs' lawyers for encouraging ill-founded claims to come forward (allegedly reducing the viability of some group actions) and it proposed an inquisitorial style drugs compensation tribunal, as an alternative to the courts, for investigating and resolving claims against drug companies in particular.

Both aspects aroused controversy.If evidence that the civil justice system is beginning to show its age is needed, we need look no further than group actions.

Sadly, the Law Commission has not found the time or resources to examine these issues.

The legal commentators have.

The problems of the future funding of these and other high cost and complex cases have already been aired in the Lord Chancellor's green paper on legal aid, in the Law Society's report 'Design for the future' and in its respons e to the green paper.

Most importantly, Lord Woolf has marked down group actions as one of the problem areas to receive attention in part two of his team's work.Group actions made easierIn the spring of 1994, the Law Society's civil litigation committee set up a working party of practitioners -- both solicitors and barristers with wide experience of group actions -- to consider ways of improving the efficiency with which they are conducted.

The proposals in their report 'Group actions made easier', published in October, are capable of implementation without changes to the substantive law.Lord Woolf's interim report published in June (Access to justice: interim report of Lord Woolf, June 1995), places great emphasis on increasing involvement by the judges in the management of litigation.

The proposals in 'Group actions made easier' represent a logical extension of that principle to group actions.

The report advocates much earlier involvement in and control by judges over all stages of an action than has previously been customary outside the Commercial Court.

However, this will only be effective if there is one designated judge who, from the outset, takes a proactive role in progressing the action, working with the parties to set up a framework suitable for a particular case, devising a timetable and holding regular case management conferences.Difficult issuesThe working party also addressed some very thorny issues -- on which, inevitably, it was difficult to obtain a consensus.One reason why plaintiff costs have tended to escalate in some group actions has been that legally aided litigants lack the incentives of the private litigant to keep costs to a minimum by restricting the number of separate firms of solicitors instructed.

The working party concluded that, in the context of a group action, it does not make sense to permit unrestrained duplication of legal work; that is, to allow every plaintiff to instruct an individual solicitor.

Instead, it recommended that there should usually be one or a limited number of lead firms conducting the action; particularly selecting and investigating the lead cases and generic issues.

However, this should not preclude other solicitors being involved in work on individual claims in larger cases, on a 'hub and spoke' principle.Two other practical problems which proved particularly difficult with plaintiff and defendant specialists adopting opposite views were:(a) whether defendants should continue to enjoy what some regard as their traditional right to investigate all the plaintiffs' claims individually at an early stage, including access to medical records and reports;(b) whether a defendant who has been successful against some (but not all) plaintiffs or categories of plaintiffs, and has secured costs orders as a result, should be entitled to enforce such orders by setting them off against the damages otherwise payable to the other successful plaintiffs.With (a), the majority of the working party was in no doubt that, in most cases, the defendant should not be permitted to range free in his or her enquiries as this would not be consistent with speed or economy.

Even if the judge were prepared to allow some detailed investigation of non-lead cases at an early stage, this should generally be at the defendant's expense.

With (b), the majority concluded that in most actions the defendant should not be allowed to set off his or her costs against damages otherwise payable to successful plaintiffs.PublicityAnother controversial issue is whether and how plaintiffs' solicitors shou ld be permitted to publicise the potential action and advertise for clients, particularly at the early stages.

For some years solicitors have been free to advertise provided they abide by the Law Society's publicity code, but this has not prevented some of the judges, the Legal Aid Board, and particularly the media from criticising solicitors for 'ambulance chasing', particularly in some product liability group actions.

The argument is that individuals who have used the product or taken the drug in question, but who have not sought legal advice until encouraged to do so by a solicitor's advertisement, will generally turn out to have, at best, weak cases.

Adding these types of clients into a group claim can dilute its merits and viability, to the detriment of those with meritorious cases.

The working party, however, was entirely satisfied that advertising and publicity have an important role to play, particularly in the more novel types of claims because many citizens will not be aware of their rights without prompting.

It is quite possible to organise publicity in a sensitive and non-misleading way which will not falsely encourage those with flimsy claims to put themselves forward.

There will also be occasions, after the commencement of the action, when further publicity will be required, particularly if the court sets cut-off dates by which potential claimants must join the action.

The working party recommended that the court should approve the timing and placement of notices in these circumstances.

The report also includes some draft practice advice on advertising and publicity in group actions which the Law Society may adopt and publish separately in due course.Alternatives to litigationAre the courts the best forum for resolving cases arising from disasters of either the one-off or 'rolling' type, which affect large numbers of people? The working party concluded that they were, providing that litigation in the future can be conducted more efficiently and cost-effectively.

Alternatives such as tribunals or boards of enquiry are not satisfactory for the following reasons:-- these types of claim, which often excite great public interest, should be heard in public (which is not the common practice of most tribunals);-- the issues often involve complex legal concepts which should be aired in a forum used to grappling with difficult legal matters, and should be tested by an adversarial process;-- claimants need to have legal representation; they could be at a great disadvantage in pursuing a claim without it, since any tribunal or board of enquiry would need very detailed evidence on complex matters of fact and law which ought to be professionally presented and tested.The working party concluded that inquisitorial procedures, particularly if conducted in private, were less likely to yield a just result.

However, the report does recommend that, where boards of enquiry are set up, usually by the government, to investigate the causes of a major public disaster and make recommendations to prevent a similar occurrence in the future, the findings of fact of that board of enquiry should be accepted by the courts in any subsequent litigation.

The working party also suggests that a tribunal, under the control of the court, could be a useful way of assessing the appropriate damages for individual plaintiffs once liability had been determined by the courts in the usual way.Despite the successful outcome of some recent groups actions, it is becoming increasingly clear that if they are to remain viable in England and Wales, some ra dical steps must be taken to cut the litigation process down to size.

A new rule of court seems to be an essential first step -- and a draft rule forms part of the report.

It remains to be seen whether Lord Woolf or anyone else proposes other workable solutions.'Group actions made easier: a report by the Law Society's civil litigation committee' was published on 18 October 1995 and is available from the Law Society book shop, 227/228 Strand, London WC2R 1BA; tel 0171 242 1222, price £10.GROUP ACTIONS MADE EASIERThe main proposal in the report is a new rule of court, deliberately drafted to be flexible and applicable to many different types of case, including claims arising from one-off disasters and 'rolling claims' which arise from allegedly defective products or drugs sold and consumed over a long period of time.Some of the key recommendations of the report are:-- group actions should generally be conducted by a lead firm or co-ordinating group of solicitors whose role should be defined at an early stage by the court to avoid disputes, including costs at taxation;-- the criteria for declaring group actions should be flexible with no absolute minimum number of claimants (although generally at least ten cases would be required);-- each individual claimant should not have to issue a separate writ but should join the action by a notice/register system (joining the register would suspend limitation);-- some actions might be able to proceed by test case, but generally it would be more appropriate to select a number of lead cases from which common issues would be defined and tried;-- lead cases should only be settled or discontinued with the leave of the court (split trials on lead cases would be an exception);-- defendants should be allowed to make global sum offers to settle the entire action but only with the approval of the court (all settlements should be approved by the court and plaintiffs should have three months rather than 28 days to decide whether to accept payment into court).This article was written by James Burnett-Hitchcock, Cameron Markby Hewitt, and Suzanne Burn, secretary to the Law Society's civil litigation committee.1996