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The Government’s response to the proposals of the Civil Justice Council (CJC) on collective actions has effectively shut the door on the introduction of a generic collective action in England, choosing instead a sector-by-sector approach whereby new collective action procedures are to be introduced on an 'as needed' basis, says international law firm Freshfields Bruckhaus Deringer. The response will initially be welcomed by large companies who had feared that the introduction of a generic collective action might bring about some of the excesses of the litigious US business environment where thousands of collective actions (known as class actions in the US) seek billions of dollars in compensation annually against companies - although there would have remained important differences between the two systems. However, there may still be more collective actions in some sectors, and possibly on the basis of disgorgement or profit stripping (rather than the traditional compensation). Moreover, the proposals suggest that selected regulators will be ordering compensation as well as fines, a responsibility that many regulators have said they do not want. Paul Lomas, a litigation partner at Freshfields, believes that change, while granular and slow in most sectors which present a low priority or complex issues, will potentially come more quickly in areas such as financial services and competition law given the heightened focus on these areas by the Government. ‘Although there were concerns at steps towards a more litigious US model and worries about abuse, companies, especially in the financial sector, also have real concerns about wider use of ombudsmen and regulators to award compensation. These systems can be arbitrary and ill equipped to deal with high volume cases. Moreover, it can be difficult to get a binding settlement,’ says Lomas. ‘This diverse, sectoral approach with a mixture of regulatory action and enhanced group action is certainly going to make life a lot more complicated for companies,’ he says. Dispute resolution partner, Simon Orton, adds, ‘Throwing the issue of compensation to the regulators is not necessarily the answer. Public agencies are not necessarily well placed to determine inter-party compensation as, invariably, politics become involved and there is a question of whether they can properly decide the legal merits. A lot will depend on precisely what powers are given to the regulators and how they use them.’ Where enhanced group actions are introduced, the Government tilted against 'opt-out' (US style) actions generally favouring more restrictive 'opt-in' approaches and developing, with the CJC, controls on court procedures to avoid abuse. However, 'opt-out' actions might still be adopted in appropriate cases. Government departments will consider the need for primary legislation on a sector-by-sector basis using a policy framework document to assist policymakers. Work on the framework will begin in the second half of 2009.
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