1. INTRODUCCIÓN
1.6. ETIOPATOGENIA DE LA OBESIDAD
1.6.2. Factores ambientales
G. EXPERT EXAMINATION
CHARTERED INSTITUTE OF ARBITRATORS IDRS
CEDR
THE ACADEMY OF EXPERTS
MARITIME SOLICITORS MEDIATION SERVICE THE OMBUDSMAN SERVICE LTD.
GOVERNMENTAL OR GOVERNMENT-FUNDED BODIES PROVIDING ADVICE, ADVOCACY, OR REDRESS MECHANISMS
LEGAL ACTION GROUP CITIZENS ADVICE BUREAU
NATIONAL MEDIATION HELPLINE CIVIL MEDIATION COUNCIL PENSIONS ADVISORY SERVICE CONSUMER FOCUS
CONSUMER DIRECT
INDEPENDENT COMPLAINTS ADVOCACY SERVICE
NON-GOVERNMENTAL BODIES OR ORGANISATIONS PROVIDING ADVICE, ADVOCACY, OR REDRESS MECHANISMS
ACAS (ADVISORY, CONCILIATION AND ARBITRATION SERVICE) ADVICE SERVICES ALLIANCE
WHICH? LAW CENTRES LAW WORKS OMBUDSMEN PUBLIC OMBUDSMEN
PARLIAMENTARY AND HEALTH SERVICES OMBUDSMAN LOCAL GOVERNMENT OMBUDSMAN
JUDICIAL APPOINTMENTS AND CONDUCT OMBUDSMAN
PUBLIC SERVICES OMBUDSMAN FOR WALES
HYBRID: PUBLIC/PRIVATE OMBUDSMEN FINANCIAL SERVICES OMBUDSMAN PENSIONS OMBUDSMAN
PENSION PROTECTION FUND OMBUDSMAN OFFICE OF LEGAL COMPLAINTS OMBUDSMAN ENERGY OMBUDSMAN
THE HOUSING OMBUDSMAN SERVICE PRISONS AND PROBATION OMBUDSMAN PRIVATE OMBUDSMEN
SURVEYORS OMBUDSMAN SERVICE
DOUBLE GLAZING AND CONSERVATORY OMBUDSMAN OMBUDSMAN FOR ESTATE AGENTS
THE FURNITURE OMBUDSMAN THE REMOVALS OMBUDSMAN THE WATERWAYS OMBUDSMAN LITERATURE ON OMBUDSMEN:
TRIBUNALS:
EMPLOYMENT TRIBUNALS
EMPLOYMENT APPEAL TRIBUNAL ASYLUM AND IMMIGRATION TRIBUNAL ASYLUM SUPPORT TRIBUNAL
IMMIGRATION SERVICES TRIBUNAL
SPECIAL IMMIGRATION APPEALS COMMISSION PROSCRIBED ORGANISATIONS APPEAL COMMISSION ADJUDICATOR TO HM LAND REGISTRY
LANDS TRIBUNAL
RESIDENTIAL PROPERTY TIBUNALS SERVICE VALUATION TRIBUNALS SERVICE
CARE AND MENTAL HEALTH TRIBUNALS CHARITY TRIBUNAL
CONSUMER CREDIT APPEALS TRIBUNAL
CRIMINAL INJURIES COMPENSATION APPEALS PANEL
SPECIAL EDUCATIONAL NEEDS AND DISABILITY TRIBUNAL (SENDIST) ESTATE AGENTS APPEAL PANEL
FINANCE AND TAX TRIBUNALS
FINANCIAL SERVICES AND MARKETS TRIBUNAL PENSIONS REGULATOR TRIBUNAL
CLAIMS MANAGEMENT SERVICES TRIBUNAL
GENERAL COMMISSIONERS OF INCOME TAX – NOW FIRST-TIER TRIBUNAL (TAX) GAMBLING APPEALS TRIBUNAL
GENDER RECOGNITION PANEL INFORMATION TRIBUNAL TRANSPORT TRIBUNAL
SOCIAL SECURITY & CHILD SUPPORT AND WAR PENSIONS TRIBUNALS TRIBUNALS SYSTEM AFTER THE REFORM
GOVERNMENT DISPUTE SETTLEMENT AND COMPENSATION SCHEMES CRIMINAL INJURIES COMPENSATION
OFFICE FOR JUDICIAL COMPLAINTS
CENTRES ADMINISTERED BY HER MAJESTY’S COURT SERVICE THE SMALL CLAIMS MEDIATION SERVICE RUN BY THE HMCS SECTORAL PUBLIC REGULATED SCHEMES
FINANCIAL STANDARDS AUTHORITY (FSA)
LEGAL COMPLAINTS SERVICE THE PENSION PROTECTION FUND
NHS COMPENSATION AND REDRESS SCHEMES COMPLAINTS ABOUT THE NHS
THE NHS REDRESS ACT 2006 – PROPOSED COMPENSATION SCHEME NHS LITIGATION AUTHORITY
NHS PHARMACY COMPLAINTS
SECTORAL REGULATORS (AND INDEPENDENT ADR SCHEMES APPROVED BY THEM, SOMETIMES REQUIRED BY STATUTE)
OFFICE OF COMMUNICATIONS (OFCOM)
CISAS (COMMUNICATIONS AND INTERNET SERVICES ADJUDICATION SCHEME) OTELO (OFFICE OF THE TELECOMMUNICATIONS OMBUDSMAN)
POSTCOMM – POSTAL SERVICES COMMISSION POSTAL REDRESS SERVICE (POSTRS)
ADVERTISING STANDARDS AUTHORITY (ASA) OFGEM
OFFICE OF RAIL REGULATION (ORR) PENSIONS REGULATOR
OFFICE OF FAIR TRADING CIVIL AVIATION AUTHORITY
OTHER GOVERNMENT–APPROVED SCHEMES MOTOR INSURERS BUREAU
SCHEMES FOR RESOLVING TENANCY DEPOSIT DISPUTES LETTING AGENTS
ESTATE AGENTS BUSINESS SCHEMES
ASSOCIATION OF BRITISH TRAVEL AGENTS (ABTA) MOTOR INDUSTRY
RETAIL MOTOR INDUSTRY FEDERATION SERVICE AND REPAIRS
THE SOCIETY OF MOTOR MANUFACTURERS AND TRADERS, NEW CAR CODE CONCILIATION SERVICE
MECHANICAL BREAKDOWN INSURANCE
ROBERT BOSCH LTD (CAR REPAIR AND SERVICING) CODE OF PRACTICE BRITISH WATERWAYS
PRESCRIPTION MEDICINES CODE OF PRACTICE AUTHORITY (PMCPA) CODES OF ASSOCIATION OF BRITISH HEALTHCARE INDUSTRIES (ABHI)
BRITISH HEALTHCARE TRADES ASSOCIATION (BHTA)
OTHER INDEPENDENT COMPLAINTS AND DISPUTE RESOLUTION SCHEMES PRESS COMPLAINTS COMMISSION
OTHER CODES OF PRACTICE APPROVED UNDER THE OFT’S CONSUMER CODES APPROVAL SCHEME
DIRECT SELLING ASSOCIATION (DSA) CODE OF PRACTICE CARPET FOUNDATION CODE OF PRACTICE
INTRODUCTION
This project observes the civil justice system of England and Wales, seeking to map out the out-of-court (non-judicial) mechanisms of resolving civil disputes and providing redress. It looks at ADR mechanisms as well as Tribunals. The latter, although more ‘judicial’ in nature than ADR mechanisms (and in fact not formally ADR mechanisms at all), are nevertheless considered important for presenting the entire picture of civil justice not directly involving courts. For the same reason, small claims procedures (including the small claims track and the small claims procedure resulting from the implementation of the Small Claims Directive) are not covered here: they do involve courts.16
The aim is to develop an analytical framework and to assess the mechanisms for resolving civil disputes and providing redress which do not directly involve courts. Although the research has not been tailored particularly to consumer disputes (which involve a consumer as one party – the claimant, and a business as the other party – the defendant), it does contain analysis of mechanisms which serve the purpose of resolving such disputes. It does, however, go beyond the consumer dispute context and also analyses mechanisms used in business disputes (such as arbitration). The project does not go into administrative or criminal justice areas – although it does observe some mechanisms which provide administrative and criminal justice (such as public ombudsmen or some compensation schemes) as long as these resolve civil disputes or provide civil compensation as well.
England and Wales have seen and extraordinary development of various public and private, governmental and non-governmental, mechanisms for resolving disputes and providing redress. Since 1950s, numerous ombudsmen, tribunals, as well as industry-led schemes started appearing, with a particularly prolific period during 1990s and beyond. Indeed, the process of creation and redevelopment of these schemes is by no means over. However, research conducted for the Citizens Advice Bureau indicated that in one year, 7.25 million people “who would have liked to receive advice on a problem, had no help at all”.17 Particular problems: especially related to lack of awareness of the availability of assistance and of the very existence of ADR schemes, were noted by research done in
16 Thus, the structure of this project is different to the one adopted by the Leuven Study (2007)
“Analysis and evaluation of alternative means of consumer redress other than redress through ordinary judicial proceedings (Final Report of 17 January 2007:
http://ec.europa.eu/consumers/redress/reports_studies/comparative_report_en.pdf). The Leuven study covers ADR mechanisms, small claims procedures, collective actions and injunctive actions. It was commissioned by the European Commission’s DG SANCO to determine the position of consumers wishing to obtain access to justice through other means than ordinary judicial proceedings.
17
See the Citizens Advice Bureau The 2008 – 2011 Citizens Advice service strategy: an overview, available
on the website of the Bureau:
2003 for the Department of Trade and Industry regarding consumer disputes.18 Certainly, there is scope for reform of the non-judicial mechanisms providing civil justice.
The mechanisms of alternative dispute resolution, and specifically alternative means of consumer redress, have also been on the agenda of the European Union for some time. It has been argued that there are gaps in consumer redress and in enforcement of other areas of law (such as competition or IP law), both on the national and on the cross-border basis. The EU activities in the area consist of policy programmes, legislative measures, and last but not least – research projects. The Leuven Study on alternative means of consumer redress other than redress through ordinary judicial proceedings of 2007,19 unsurprisingly reported significant differences in the mechanisms and procedures for non-judicial consumer redress across the EU Member States.20 It is clear that, as the Final Report for the Study itself emphasized, the work on observing the structure, operation and procedures used by these varied national mechanisms has only begun.
Non-judicial mechanisms for resolving disputes are also on the agenda of the UN: the UN Secretary-General’s Special Representative on Business and Human Rights, in cooperation with the Corporate Social Responsibility Initiative at Harvard Kennedy School and with the collaboration of the International Bar Association and Compliance Advisor/Ombudsman of the World Bank Group initiated a world-wide project (‘BASESwiki’ – database format) gathering information about these mechanisms operating on the global, regional, national, local basis, as well as industry and company- specific schemes, and experts (see http://www.baseswiki.org/En for details).
It is hoped that this project will contribute to greater awareness and understanding of the types of mechanisms existing in England and Wales, and to greater appreciation of features which determine their effectiveness and popularity.
Methodology:
While the first part of the Paper introduces the concept of civil justice, and focuses on the forms of non-judicial, out-of-court forms of dispute resolution and providing redress, the second part contains analyses of the respective mechanisms which function in England and Wales. These analyses follow the same research structure:
18
Department for Trade and Industry, URN 03/1616; research conducted by independent consultants Margaret Doyle and Katrina Ritters, and Steve Brooker of the National Consumer Council.
19
“An analysis and evaluation of alternative means of consumer redress other than redress through ordinary judicial proceedings.” A Study for the European Commission, Health and Consumer Protection Directorate-General, Directorate B – Consumer Affairs, prepared by The Study Centre for Consumer Law – Centre for European Economic Law, Katholieke Universiteit Leuven, Belgium, Prof. Dr. Jules Stuyck, Prof. Dr. Evelyne Terryn, Drs. Veerle Colaert, Drs. Tom Van Dyck, Mr. Neil Peretz, Ms. Nele Hoekx and Dr. Piotr Tereszkiewicz, Assisted by Ms. Beatrijs Gielen (available on
http://ec.europa.eu/consumers/redress/reports_studies/comparative_report_en.pdf).
20
Statutory basis (legal basis)
Links with government and funding Governance and structure
Budget and expenditure Aims
Procedure:
o who can apply for compensation/refer claims o formal requirements and time limits
o proceedings (the main stages, any complex procedural steps which can be
identified, the length of the proceedings, whether there is a final hearing, the binding (or not) nature of the final decisions, appeals)
o results – compensation, other o costs
History (including any reforms, also ongoing reforms) Statistics
Reported cases, problems, issues identified in academic writings
The US Class Action Experience
So much of the debate about collective redress is influenced by the issue of Collective Litigation or Class Actions that it is helpful to look at the experience of that approach to date.
The United States is the leading proponent of Class Actions as a means of resolving consumer complaints. In part this derives from the strong tradition of private enforcement in America. There is a fundamental belief in the individual asserting and fighting for his or her rights. If a wrong has been done to him, the individual should resolve it and not rely on others to do so for him. The Courts provide the forum for fighting out disputes.
US Tort Costs in 2006 were estimated at $247bn, which was approximately $825 per person of the US population.21 A US federal government analysis in 2002 concluded that excessive tort litigation costs in 2000 were an $87 billion drag on the national economy.22 The study estimated that the impact of wasteful legal expenditures equated to a 1.3% tax on consumption, or a 2.1% tax on wages.
Over the past 56 years, direct tort costs in the US grew more than 100-fold from less than $2 billion in 1950 to $247 billion in 2006, while GDP has only grown by a factor of 45. The 2007 figure equates to a “litigation tax” of $825 per person, compared to $12 in 1950, and is equal to just under 2% of the Gross Domestic Product of the United States. Nearly one in six jury awards is now $1 million or more. Over 7% of businesses experienced a liability loss of $5 million or more during the past five years.23
In 2005 the annual tort cost for small US businesses was $98 billion. This equates to $20 per $1,000 of revenue. Small businesses bear 69% of US business tort liability but take only 19% of revenues. They pay $20 billion of their tort costs out of pocket, as opposed to through insurance.24
A survey of 500 U.S. CEOs by the Conference Board found that lawsuits caused 36% of their companies to discontinue products, 15% to lay off workers, and 8% to
21
2007 Update on US Tort Cost Trends, (Tillinghast-Towers Perrin 2007)
22
An Economic Analysis of the U.S. Tort Liability System, (U.S. Council of Economic Advisers, 2002).
23
2007 Update on US Tort Cost Trends, (Tillinghast-Towers Perrin 2007)
24
Tort Liability Costs For Small Business (US Chamber Institute for Legal Reform, 2007). Small businesses are defined here as those with less than £10 million annual revenues and at least one employee in addition to the owner. The tort cost increased 13% from 2002 to 2005.
close plants.25 A Gallup survey of U.S. small businesses found that 26% of owners said that fear of liability kept them from releasing new products, services or operations to the market.26
US corporations paid $2.5 billion to shareholders to settle securities class actions in 2005.23 Settlements in securities cases have grown successively over the past decade: in 735 cases between 1997 and 2005, the total settlement amount was $26 billion.28 This would have yielded plaintiffs’ lawyers’ fees $7.8 billion assuming the average 30% contingency fee is assumed.
That is not to say that Europe is without litigation, but in general Europe has a more developed system of public rather than private enforcement. Social and welfare systems are more developed in Europe, and there is an underlying assumption that the State should protect the individual. In contrast to America, there is in Europe a more developed network of regulators and public enforcement agencies on which the individual is entitled to rely. The position is further complicated by the underlying tension between the State and Federal Authorities in America. The effectiveness of Federal Authorities is questioned and that effectiveness is to some extent compromised by the perception at State level that the powers of Federal authorities infringe on the powers of their equivalent at State level.
The development of Class Actions in America owes much to this underlying philosophy. The amendment in 1966 of Rule 23 of the US Federal Civil Code was intended to assist individuals mainly in two ways. First, it was intended to assist the civil rights movement to obtain justice for minorities, particularly for those fighting racial discrimination. Actions could be brought on behalf of large groups to obtain financial compensation or injunctive relief. Second, it was intended to simplify the process of obtaining redress after disasters – such as plane or train crashes - in which large groups of individuals suffered significant loss from the same cause. Instead of fighting individual cases, those individuals could band together to assert their rights. It made litigation more cost effective and it gave a one-off resolution of such complaints rather than repetitive litigation and disparate judgements from hundreds of lawsuits.
From these well-intentioned origins has developed a litigation industry said to have a turnover greater than that of the US utility industry – a result that is probably very far from the intentions of those who framed the law.
25
Tort Liability Costs For Small Business (US Chamber Institute for Legal Reform, 2007). Small businesses are defined here as those with less than £10 million annual revenues and at least one employee in addition to the owner. The tort cost increased 13% from 2002 to 2005.
26
National Small Business Poll (National Federation of Independent Businesses, 2002).
2327
L E Simmons and E M Ryan, Post-Reform Act Securities Settlements: 2005 Review and Analysis (Cornerstone Research, 2006).
28
In principle, there must within the class of litigants be commonality of issues of both fact and law and there must be adequate protection of the interests of the class as a whole. Class interests should predominate over individual interests, and the class action must be a superior way of achieving justice than the adjudication of multiple individual suits.
In practice, there is all too often a “race to the Court room door” as competing plaintiff law firms seek to be the first to win the right to represent the interests of a particular class.29 There was also the development of so-called “judicial hell-holes” in which Courts developed rules and procedures ever more favourable to the plaintiff. Before the introduction of the Class Actions Fairness Act 2005 – which has had the effect of transferring many actions from State to Federal Courts – the Madison County Circuit in Illinois became well known for class action litigation. The County covers less than 1% of US population, but the number of class actions heard there grew from a single case in 1995 to 106 cases in 2003, before falling back to single digits from 2006 onwards.
The growth of class action litigation has driven “greenmail” settlements, on the basis that the shear cost of litigation coupled with the reputational damage to the defendant companies were greater than the cost of settlement. This has lead to absurd results. In a case involving the rounding up of insurance premiums, a group of insurance companies settled litigation brought against them for aggregate damages of $35m. This was despite the fact that the case was brought in a Texas Court, under Texan law which specifically instructed insurance companies to roundup such premiums to the nearest $. The settlement was cheaper than litigation and reputational damage was limited.
Nor does the track record of American class actions show that they have necessarily benefitted the individual plaintiffs rather than the law firm that financed the suit. In a case involving over-collection of escrow monies30 each of the plaintiffs received average damages of $8.76 each. In contrast the law firm received contingency fees of $8.5m. Those contingency fees were paid by levying a charge of $80.00 on each of the bank accounts of the plaintiffs on behalf of whom the case had been brought – resulting in a significant net loss to each of the plaintiffs.
The Boston Bank case also illustrates the danger of the opt-out system of litigation. The case was brought on behalf of all the account holders of the bank who were alleged to have suffered loss from over-collection of escrow monies and who all
29
The New York firm of Milburg Weiss Bershad + Schulman LLP used to be one of the leading American law firms in the field of securities suits. The firm and two of its partners were indicted for paying
kickbacks to individuals in exchange for those individuals’ services as lead plaintiffs in at least 150 securities class actions. One of those individuals admitted to receiving over $2.0m in illegal kickbacks. Prior to indictment, the Milberg Weiss firm handled over 40% of securities cases. United States v Milberg Weiss Bershad + Schulman LLP, No 05-587 (C.D. Cal. 2006).
experienced the same net loss from the lawsuit – whether or not they had positively assented to take part.
In a case brought against Firestone Tires31, the plaintiffs suffered no actual loss or injury – it was a case of potential loss from potentially defective tires. Judgement was nevertheless given against the defendant, and while each individual plaintiff received virtually nothing, the law firm took home contingency fees of $19m. In a case brought against the manufacturers of “Poland Spring” mineral water32, it was demonstrated that advertising claims as to the source of the water were false. There was no tangible loss to the class of purchasers on behalf of whom the class action was brought. However, the lead (representative) plaintiff received damages of $12,000; the company was obliged to make a donation of $2.75m to charity; and