And justice for all – crucial reform to make recourse to the law accessible

Rachael Mulheron, Professor of Tort Law and Civil Justice, has worked on law reform leading to substantial improvements in the legal process.

Her work has been wide-ranging and has tackled many aspects of civil procedural law. She has effected policy change or made a significant contribution in six key areas:

• Third-party funding
• Damages-based agreements
• Class actions reform
• Hot-tubbing and concurrent expert evidence
• Disclosure monitoring
• Before-the-event insurance

She has engaged widely with law firms, with counsel, the third party funding industry, the Ministry of Justice (MOJ), and others, and has worked to transfer that knowledge and research to assist law reform overseas.

Her aim has been to make the law accessible and cost-effective to potential claimants.

What barriers are there to legal access? How has Professor Mulheron’s work addressed these issues?

Damages-based agreements

Damages-based agreements (DBAs) constitute an agreement between a representative and a client. The representative’s agreed fee depends on the success of the case and is determined as a percentage of the compensation the client receives. There has been a very low take-up of DBAs in the marketplace. Many legal practitioners find the Regulations difficult to understand, and if they do not comply with them, they may not be able to recover a fee at all.

Professor Mulheron previously chaired the joint MOJ/Civil Justice Council Working Group, and was principal author of its 2015 report which has since been judicially cited; and she is currently an independent Co-Reviewer, aiming to re-draft and improve the DBA Regulations. Her report resulting from the Review was provided to the MOJ in 2020, and is under consideration. Her reform work in the area of DBA reform has received Parliamentary citation, and was useful to the Australian Law Reform Commission in its recent deliberations on third party funding.

Class actions reform

An opt-out class action procedure is one in which a claim is brought on behalf of a defined class of potential claimants without their proactively choosing to participate. Without an opt-out class action, many grievances — product liability, franchise disputes, environmental disasters, wrongfully incurred fees or expenses, tax disputes, data protection grievances, historical abuse cases — simply go unredressed

Professor Mulheron has campaigned for the introduction into UK law of a measured, fair, and effective opt-out class action of a generic nature, that can accommodate any cause of action without limitation. Professor Mulheron’s class actions reform work influenced the implementation, in 2015, of a regime which has enabled cases to be brought by the opt-out class action for competition law grievances.

She has promoted UK-based research by involvement or engagement with overseas law reform bodies; and has written three books of comparative class actions scholarship, and almost 50 other class actions-related reports, journal articles, and published papers. There has been substantial judicial citation of her legal and empirical work on class actions in the UK and in other jurisdictions, together with Parliamentary citations. She advises UK government departments in relation to class action consultations.

Third-party funding

English judges have long recognised that professional third party funders should be permitted to provide financial and other assistance to litigants so that they can achieve access to a courtroom to have their disputes resolved. Professor Mulheron was a member of the working committee in 2011 that drafted a Code of Conduct for Litigation Funders (which she subsequently peer-reviewed in 2014 and 2017). The Code requires that funders remain liquid and able to meet their funding obligations. This is vital for the funded client’s welfare, and of course, for the defendant to a funded case.

Professor Mulheron has offered advice and recommendations to the Law Commissions of Australia, New Zealand, Cayman Islands, and Ireland on aspects of third party funding. She is currently undertaking a project on the doctrines of champerty and maintenance, which will make further recommendations in relation to the industry of third party funding.

Hot-tubbing/concurrent expert evidence

Sometimes, the adversarial system of litigation isn’t in the best interests of all parties. The practice of ‘hot-tubbing’ happens where there is a discussion, usually chaired by a judge, in which the various expert witnesses, the parties, the advocates, and the judge work together to identify the issues and resolve them cooperatively. It means expert evidence can be shared more cost-efficiently and in a more non-adversarial environment.

Concerns were raised amongst the judiciary that hot-tubbing wasn’t as widely practised as it might be and that where it was, it was often led by the judge’s preferences, rather than in accordance with any defined set of guidelines. Professor Mulheron chaired a joint MOJ/Civil Justice Council Working Group which investigated all aspects of ‘hot-tubbing’, and she was the principal author of the resulting report for the MOJ and Master of the Rolls. Professor Mulheron also participated in judicial training, and in a sub-committee which proposed rules changes, after the report was published.

Disclosure monitoring

One of the most onerous and prohibitive costs associated with legal action is that of disclosure. Generally, this process means litigants are legally required to disclose any documents upon which they rely and any documents that adversely affect their case or support the other party’s case. This can be a lengthy, confusing, and expensive process.

A Disclosure Pilot was introduced to the Business and Property Courts, offering five models of disclosure, which allowed litigants, legal representatives and the judiciary to tailor disclosure orders for each individual case. Professor Mulheron was appointed as Official Monitor of the Disclosure Pilot, and has, to date, produced three Interim Reports which have helped shape the development of the Pilot. The aim of the Pilot is to reduce costs and thereby make access to the courts a more realistic prospect for those unable to afford huge disclosure bills.

Before-the-event insurance

Many standard home, contents, mobile phone, and car insurance policies offer before-the-event (BTE) insurance as part of the policy. BTE insurance can cover the legal costs associated with a range of mishaps, from employment grievances to medical negligence claims. Many of those who hold BTE insurance are unaware that they hold that cover.

Professor Mulheron chaired a joint MOJ/Civil Justice Council Working Group to explore BTE insurance, in order to identify its disadvantages and limitations, to discover its coverage and exclusions, and to examine ways of educating the wider public (and government policy-makers) of BTE insurance’s possibilities. Professor Mulheron undertook the principal writing responsibilities for the resulting Information Report, which continues to provide a key reference point for the law and practicalities of BTE insurance.

Professor Mulheron was appointed an Honorary Queen’s Counsel in December 2020 (effective 15 March 2021), in recognition of her services to law reform.