Timeshare groups can be formed before during or after a dispute, they can be menacing and hard to defeat. I have not known of a consumer group every failing in a timeshare dispute.
Introduction
Group actions are not advised in every case, especially were the issues (each litigant promotes with a defendant) are varied.
Also, if all the parties are unconnected or do not share a common agenda then group actions are generally not the best forum.
The group litigation is a very good way to cost manage a dispute, as if the issues are common, the arguments will be common and council and solicitors will be communicating once, and on behalf of many, instead of individually.
Benefits
The benefits come in variety of guises
The Litigant’s Costs
This might seem strange as I have pluralised litigants and costs. This is important, as each litigant has a duty to the other and that duty is to issue expeditiously and deal with the matters proportionally and economically.
If, for instance, some party has a low grade dispute and expends a vast amount of money on their defence/claim, the courts will sanction that litigant by way of a cost assessment and at the end of the trial.
So, above all, it’s the litigants duty to address the cost issue at the start of the litigation, so as to ensure that if they win they get a full recovery.
That said it would be a travesty if a litigant won his case and was awarded say £10,000 only to be penalised by being awarded £10,000 costs when in reality he paid £20,000. So group litigations, not only save you money (if you want to settle and sue) they also facilitate compliance with the CPR (court rules).
The second benefit is support, (not by the lawyers) by the likeminded individually who are all in the same boat, have the same problems and toiling over the same issues. As my mother used to bleat on to me “a problem shared is a problem halved”
Diversity is a great benefit.
To realise this, we all have to admit that we are not great at everything (that being an absolute truth) therefore in a group, we can sap the knowledge, logic and will from others. We can see the arguments of other minds, therefore in reality more bases are covered and the position sticks “the many hands will make (the work, the disclosure and the running) “light work”. If a multitude of singularity actions, with an army of competing lawyers, promoting alternative issues, arguments and advice occur, then the cause would be contaminated with a multitude of competing minds and no doubt the “broth would be spoiled”.
Groups command power in numbers, they show courts there is a unity of hurt, a unity of unfair treatment and gives the case a real and beating heart.
The Judges Dilemma.
In all cases the courts have far reaching powers (and so they should). They can take information from a witnesses and “chew the cud” and “spits out” what that courts believes to be a fact. That fact will determine the entire case and consequential judgement. If a litigant is not a good witness and does not give a good account (on a stand), then generally his case will flounder, however with a long line of other witness who give good evidence (which is corroborated by others) their evidence will be accepted and yours will become moot.
The final major benefit is money. If anyone has had an action in the past (which has involved going to court) they will be well aware that, when matters are getting closer and closer to the court date the costs rise and rise and the penny meter is on warp speed. At this stage you have no choice but to keep dipping into your pocket and fund the solicitors, his appointed experts and council fees. Believe you me it hurts and its expensive. In a group that flow of money is fractionalized by the number in the group.
My final point is adverse cost orders. Many don’t discuss adverse costs orders as all litigants believe in their case and to do so is preserved as a lack of confidence. For my sins I am risk a versed.
Winning/losing in litigation and when applied to costs is so misunderstood by consumers, as a variety of final solutions can occur and parties ought to consider them before boarding on the great ship “court case cause”. If you have an issue with another and that issue is litigated you win, draw or lose. If you win the adverse costs order does not exist, neither does it exist in a draw, however if you lose and settle paying just a small part of your opponents claim adverse costs orders are applied. So say you sue for £100,000 and your opponent counter for £100,000 and you pay them £1 you lose and you inherit a £50,000 cost order.
The level of compensation is irrelevant in the issue of adverse cost orders the fact is you lose and as such you will pay part or all of your opponent’s costs. If you think funding your own costs hurts wait until you get slapped with your opponent’s costs as well. In a group action those costs are again fractionalized and again by the number in the group. In conclusion then the entire matter win or lose is a lot cheaper and the risks are a lot less.
Negitives
Organisation
With all enterprises there is an organisation, with small businesses the man at the top always complains he is the accountant, the salesmen, the author, the health and safety man and the director and every time he gets the blame.
But that man also gets the respect as he is the one who stomps though the boggy field and fights foes. We (as a community) need people like them, as they are doers. That all said they have a flaw that being if “they go down” the army is in a rout and the battle is lost. “You can’t resurrect a single mind”.
In the case of an organised group it can be said there is safety in numbers, however if that group is not managed properly then the group will fail and infighting will commence and become rife. So the mission has to be explained to all and all commit to that mission, therefore people are elected to positions to carry out that mission.
When elected, consultation is required so a meeting is convened, the group updated and the next mission is commence so that the hoard is united.
Groups have to have an exit rout so that the members are not penned in like timeshare holders. This provides comfort to the group as its existence provides choice and not the whip.
Some in the group will need more help, better explanations and hand holding, but if these accommodations are in place the group will become one and a powerful adversary.
Contributions
Money is such a dirty subject, especially when you have to hand it over to get back something which was yours in the first place. But it has to be discussed.
That said the legal profession has its ways and they all want money upfront.
Firms of solicitor however are different from the norm in that any money they are paid is lodged in escrow or their client account, and until such time as they render a invoice.
At this point they take the funds from the client account, so as to discharge the liability of their invoice.( in short they always get paid). Now looking from the side of the consumer and in a single action, I detest the practise and have many a tussle over the subject as the solicitor is saying “yes I will take your case and defend you but I don’t trust you to pay me” that being the case if I did not trust the client, I would not do their fee earning job “it’s called credit control Mr.Solicitor”.
That said, in group actions it is a different matter, as the litigation will generate huge divisible costs therefore those costs should be safe and not provide a distraction to the goal.
Further on an individual level if the group is fully funded then the individual knows they will not be liable for anybody else’s costs, as all have paid there proportion.
When matter get to court the solicitor will call in the adverse cost order fund so as to protect each and every member of the group. This will ensure that in the event of a loss, each has paid the adverse costs proportionally therefore eradicating the potential joint and several liability issue (which can arises in the event of erroneous actions of others).
So in groups you may have to pay for the costs up front and a returnable adverse cost order bond
Homogenisation
“I want my day in court”. Have you ever watched snooker a seen “Hurricane Higgins” in action or seen “Gus Hanson” at a poker table, they are and were exhilarating, fast, hard and aggressive players.
In litigation these are the traits of the single litigant, as such you as a group will have to check these traits as in group litigation these bulls will tear the pitch up and the group will dissipate.
Groups are organised, calculated, funded and more like Steve Davis (snooker) and Bjorn Borg (in tennis). So if you are in a group, your will’s, idea’s, issues and positions will have to be softened, marked down and homogenised with others, so the group is strong.
Issues and feelings have to be aired, but have to be put to one side (at times) or suppressed for a common good. This can hurt and cause upset, so you may have to control your feeling a little.
Hero/Heretic
With all groups whether on a committee, a side committee or indeed a back bencher, you will have in groups the heroes and heretic, the fighter’ the “Stone-waller’s”’ the doers, the: “I can get that” or “this” and do that and this.
In truth a group need these people and others feed of their passion, so challenge the ideas with a goal of merging your case into a menacing mass.
Sometime you will want to strangle and silence them but you can’t and you shouldn’t. Again they will have to be listened to and homogenised so that they are with you. They will bark, bite fractionalise people and sects but they are needed, as sometimes they are the ones who walk to the front, stand in the firing line and fight as menacing mortals.
Solicitors
Timeshare is a variety of different parts of the law in different jurisdiction with different entities. This being so, groups are required to test out an appointment of this key person. His candour, passion and knowledge (this is very important). Most of all the lead solicitor has to be thoughtful meticulous and predictable and tactical
Barristers
These people are your “storm troopers” and the generals who do not hide at the back (like politicians) they stand in front with every shred of paper with all the intellectual learning and load your bullets into the barrels, pull the trigger and fire. So you need brains, articulated soles that are brave, trusted and forthright. Soles who will not be fearful of walking into an angry room or soles who are not afraid of running at the attacker. These people in litigation ought to attract the most consideration by a committee as they represent you.
Committees
I have never really been the promoter of committees but I do see reason why they should be in place, and in the event of a group action.
The formation of the committee is very important and good committee add a significant amount to the cause. Its job is to get what the group wants efficiently and effectively.
You look for people who are not fence sitters, people who are honest, reasonable, kind, solvent, mindful, mature, brave, available, and considerate and someone who care about the outcome. You don’t need brains, a honour, a Demi-God, a degree, a position, a grand standee and fame.
Once formed the committee elects assistors and it’s these who are the marshals the once who spread the news, challenge the events, proposals and positions so that the committee can make an informed call.
These people are association’s lawyers, accountant’s solicitor’s experts and the intense members of the group.
The solicitors are then elected and with their advice and after considering the Marshalls view the barrister is consulted.
At this point you carry out a full investigation so that the entire group can be informed and plan made agreed and actioned.
I do hope this helps you all
For more information regarding this article or assistance in any other timeshare related issues please contact the TCA on 01908 881058 or email: info@TimeshareConsumerAssociation.org.uk