Pharmaceutical Technologist - November 2007 - (Page 18)

Llewellyn // export America’s legal system around the world”. It will be asserted that the existence of critical procedural restraints in Europe (the absence of civil juries, punitive damages and contingency fees and the existence of the “loser pays” rule) will prevent the abuses of the US system. The assertion is complacent. It is as if the great Cartesian principle has been transformed from “I think, therefore, I am” to “emo ergo sum”— “I shop, therefore, I am”. in all but name) and costs to a successful defendant only if the claimants behave in a manifestly unreasonable manner. In Autumn 2006, legislation was passed in Italy authorizing contingency fees, and the possibility of these coming into play in the UK is certainly not taboo. The Better Regulation Task Force in its October 2004 report on legal redress raised the possibility of contingency fees. While the department of constitutional affairs (DCA) rejected the proposal, the rejection was qualified and may not withstand strong advocacy of such fee arrangements, particularly in the context of mass tort claims where the aggregate damages will make a contingency arrangement workable. It convened a conference on the subject and a central element of the programme was the need for class action procedures in Europe. The programme proceeded on the unsubstantiated assumption that there was a need for such procedural reform. In a highly regulated and highly competitive European economy with horizontal and vertical regulators, enforcement offices and agencies, commissioners, Czars, ombudsman and ombudswomen, the emphasis on class actions is bizarre. Consumer interests When the political dialectic is disappearing and party political leaders appear virtually interchangeable, the principal focus of political pitches to the electorate is, to its status, as a body of consumers. It is as if the great Cartesian principle has been transformed from “I think, therefore, I am” to “emo ergo sum”— “I shop, therefore, I am”. European countries and EU policy makers are embarking upon class action reforms without establishing whether the interests of consumers require such reforms. They advocate a remedy without establishing the ailment. PT Greater justice? Collective procedures The introduction of new collective procedures is likely to create changes in European litigation culture and raise expectations that they will enhance access to justice. These expectations are likely to be thwarted by current litigation restraints, and this will inevitably lead to a concerted campaign for legislative changes, which will diminish their impact. Policy makers certainly do not regard the restraints as sacrosanct — the European Commission’s green paper on facilitating private damages actions for breach of antitrust rules illustrates the point. It also raises the possibility of a new form of collective consumer redress (i.e., a class action type procedure); shifting the burden of proof onto defendants; a doubling of damages (punitive damages We now have a situation in Europe where, on an ad hoc basis, member states are contemplating, proposing or introducing new class action style procedures. The European Commission is proposing a harmonized pan-European collective procedure involving shifting the burden of proof, a punitive element to the damages and the practical elimination of the loser pay rules. The debate has shifted from a consensus that class actions are unwarranted and unwanted to a situation where they are seen as the benign harbinger of greater justice. This trend is taking place in the absence of cogent and clear evidence of the need, or desirability, of class action reform in Europe. When the Austrian presidency of the EU took office early in 2006, it made the focal point of its term of office the enhancement of consumer rights. Paul Llewellyn is a partner and UK head of product liability at Reed Smith Richards Butler (UK). 18 November 2007 l pharmaceutical technologist

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Pharmaceutical Technologist Contents Editor's Comment News Morpheus Feeling the Pressure Legal Crusaders The Holy-Grail of Start-Up Biotech Special Feature Q&A

Pharmaceutical Technologist - November 2007

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