Cost–sharing in Group Litigation: Preserving Access to Justice

AuthorMark Mildred
Publication Date01 Jul 2002
Plainly there is a need for the English courts to restate the application of remote-
ness criteria to money claims against defaulting trustees. The dicta in Target
Holdings and Collins vBrebner as well as the statement in Lewin on Trusts provide
an unsatisfactory basis for deciding future cases. A more refined approach would
recognise that whether remoteness criteria apply at all depends on the nature of the
claim advanced, for they are only apposite where the beneficiary seeks compen-
sation for loss incurred by reason of the defendant’s misconduct. Remoteness
criteria have no purchase where the beneficiary instead overlooks the breach and
requires his trustee to perform his primary duties, even if that performance is to be
effected in money.
Greater refinement is also needed in formulating the criteria that condition liability
where the claim is for reparation of loss. In this the English courts should adopt the
two principles that underpinned Fisher J’s approach in the Guardian Trust case: they
should tailor the applicable criteria to the different types of breach of trust that may
be committed and they should develop those criteria harmoniously with the law as it
applies to cognate common law wrongs. The progress of the law is towards treating
reparation claims for breach of trust in two broad compartments that correspond to
the two major compartments discernable in tort law. The first includes claims arising
from unintentional and judicious breaches of trust; here the principal remoteness test
should be reasonable foreseeability of the kind of loss. The second includes claims
arising from intentional disloyalty; here unforeseeable losses should be recoverable
so long as they are the direct result of the breach.
Cost-sharing in Group Litigation: Preserving Access to
Mark Mildred*
Collective action in multi-claimant cases (‘group actions’) is essential to avoid an
intolerable burden on the court lists and intolerable expense in re-litigating the same
questions over and over. This is the underlying rationale for the development from
the mid 1980s of the custom of a limited team of lawyers undertaking the generic
investigation and overall administration of such litigation (‘generic work’),
irrespective of whether they have conduct of the individual claims within the group.
Once a generic approach is employed it is necessary to provide for the basis of
liability for payment of the costs of that generic work. Conventionally the parties
*Nottingham Trent University.
For accounts of the development of this area of litigation and discussion of issues commonly arising within
it see C.J.S. Hodges, Multi-Party Actions, (Oxford: Oxford University Press, 2000) and M. Mildred,
‘Group Actions’ in G.G. Howells (ed), The Law of Product Liability, (London: Butterworths, 2000).
July 2002] Cost-sharing in Group Litigation
ßThe Modern Law Review Limited 2002 597

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