Most law students learn early on in their first Tort course the ‘floodgates’ policy principle. By this policy deserving litigants are deprived of their justice deserts because the court fears that if a legal point is conceded then the locust-like hordes of unwashed plebeian litigants will descend into the courts daily list demanding their proper dues.
Justice for all, whilst a fine principle, doesn’t help His Honour get away for Wednesday afternoon golf if the daily list is stacked with oiks wanting their 15 minutes. Thus can an employer get away with whipping the wage slaves: to allow them to sue him for assault would risk dozens of cases a week having to be heard.
All it takes is for one litigant to win a point of general importance and a charge will explode in the dam and the Ruhr Valley will be flooded with hundreds of judges losing their golf days.
Unimaginable of course. And the judiciary have successfully fought off this grisly threat for generations.
An illustration of their fears can be seen in the current bank charges debacle. Egged on by the press and media stories many people are challenging the punitive bank charges/profit opportunities levied on them. The floodgates are now opening and according to the BBC Judge Stephen Gerlis, who speaks for county court judges in the London area says:
the legal system had no way of dealing with this “mass litigation”.
“There has been nothing like it in the history of civil litigation” and described the present situation as “bizarre”.
In times of yore a determined litigant would press on to the bitter end. But because there would be only one of him, the cause often being a minor one dependent on its facts, Mega-corp would unleash a legion of QCs, or more scarily Geeklawyer, and the hapless litigant and his family would be ground under the pumice stone of litigation. His children’s bones would then be used to flavour the champagne cocktails at chamber’s victory party.
When, however, a mass cause of action arises on near identical facts this strategy becomes less efficacious. A single determined individual obtaining a precedent would devastate the conduct of other cases. So the banks choose to fight each case so as not to create one; and in the interim attempt to coerce individuals into settling, or settle themselves before the court case. Everyone wins.
Except the poor bloody judges and his golf. As Gerlis says in this case they need to have the power to elevate a case to an appellate court and certify a question to be answered.
That phrase...
I concede my ignorance, but isn’t this the sort of situation that Group Litigation Orders are designed to deal with? That would at least get a single (hopefully High Court) first instance decision on the question.
(It might be an idea to delete the first “http://” from your link to the BBC.)
No not entirely. I believe the GLO is more targeted at similar issues of fact or law on a case against a single defendant. Thus the thalidomide claims against a particular drug manufacturer; but here one has a group of banks.
Wolf said:
“As we become an increasingly mass producing and mass consuming society, one product or service with a flaw has the potential to injure or cause other loss to more and more people. Yet our civil justice system has not adapted to mass legal actions. We still largely treat them as a collection of individual cases, with the findings in one case having only limited relevance in law to all of the others.”
So clearly this was an issue within that. But my recollection is that the changes to the CPR won’t allow the banks to be dealt with under GLO as this was not an anticipated problem.
I suppose one could arrange groups of claimants against one bank.
Bottom line is that the Judges don’t think they have those powers.
It’s bizarre enough that the decision of a district judge is being circulated and in effect used as authority.
Actually, I think that judgment is right in law: the charges are not penalties for breach and hence not void, they are contractual fees. Banks have been quite careful to draft their T&Cs so that going overdrawn is not a breach of contract. If there is a problem to be addressed it should be done by statutory reform in the consumer law field, not by litigation. It’s arguable that the later part of the judgment which deals with the points arising on the existing UCTA/UTCCR/SOGA legislation (ie that the fees are in any event unreasonable within the meaning of the acts) is a bit more doubtful than the penalty point.
Also I love the LiP’s comment of “I was expecting to win as I made a good job of arguing my case,” Yep, we know your pain.
GLOs should be possible for groups of claimants dealing on one set of T&Cs against one bank: that should cut the numbers down a bit. I think the main problem is that no one has really bothered because it’s small claims track and no one gave a toss until it was too late.
Gerlis is one of the good guys among London’s county court judges.
It’s bizarre enough that the decision of a district judge is being circulated and in effect used as authority.
I have a rather less charitable opinion - it’s positively dishonest for the banks & their lawyers to be using it this way. That they do so while knowing it is not a real precedent speaks to their integrity.
Yep, we know your pain…Gerlis is one of the good guys among London’s county court judges.
Indeed we do know it.
There are good County Court judges!? blimey …
It’s almost like the legal system was geared towards protecting the interests UK PLC….
Do people think that the companies offering to pursue claims on behalf of banking customers are actually undermining the chances of getting a favourable ruling against the Banks?
No not really. It shouldn’t make any difference to the courts attitude & I doubt it actually does. I’d imagine the judges regard these companies as bottom feeders providing an unnecessary service to gullible punters. But I doubt it affects the judgment significantly.