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Can people who paid their water charges sue the government for a refund?

One Labour TD said he would be happy to lead a class action suit on behalf of bill-payers. But is it possible?

Image: Shutterstock/Stokkete

YES, A DEAL on water was done to allow a new government be formed.

But the slippery issue hasn’t gone away just yet.

Irish Water was the main sticking point across 70 days of post-election talks – and debate rages on over whether those that have paid their charges so far should get a refund.

Last week, Fianna Fáil TD Jim O’Callaghan said those who have paid their bills will not get their money back. But this position has left many feeling cheated.

Labour TD Willie Penrose took to the airwaves on RTÉ’s Today with Sean O’Rourke to say that he would lead a class action if people did not get their cash back.

The veteran Dáil deputy and former housing minister claimed that the thousands of people who had paid were “being made mugs of” for simply complying with the law. Members of the public were getting the “political two fingers” shown to them, he said.

willi1 Willie Penrose Source: PA WIRE

Today, the Labour Party are to publish their Water Charges (Fair Treatment of Customers) Bill, which they say will ensure that – in the event of water charges being suspended – there’ll be equal treatment of those who have paid and those who haven’t.

Penrose said he believes a refund will be inevitable. If it isn’t, he will go as far as leading a class action case, he said – something he insisted his party also supports.

While class actions are unusual in the Irish system, he said Labour would be seeking legal advice on the issue.

A class action is when a number of jointly-affected persons can sue the same defendant(s) on behalf of all of those affected.

But, is it possible for those that have paid to take a class action against the government?

“At the moment, there’s no provision in Irish law for class actions – everyone has to bring their own case in their own name, and they can’t sue [on behalf of] other persons, as yet unknown, who might be affected,” barrister Fergal Crehan told TheJournal.ie.

“They are usually required to advertise the planned class action suit, and encourage affected persons to join it,” Crehan continued, further explaining the term

“In the event that they win, they will be awarded the entire sum of money owing to all affected persons.

They then hold that money in trust on behalf of those people are tasked with distributing it – they can’t just keep the whole sum of money and divide it up amongst themselves.

People Erin Brockovich Erin Brockovich Source: Associated Press

Erin Brockovich

A famous example of a class action is Erin Brockovich’s case against Pacific Gas and Electric, where the residents of Hinkley, California were awarded $333 million for damages caused by decades of pollution.

One person could take a case, said Crehan.

The sensible thing would be to decide on a sympathetic plaintiff with a clear cut and uncomplicated case, and let them go ahead first. If they won, the precedent would then be established which could be relied on by others.

However, he warned, test cases are usually vigorously defended and appealed at least once. The defendant would be well aware of the potential for opening the floodgates if they lose.

Test cases are fairly common here, because of the absence of class actions. Other affected persons will often wait until the outcome of a test case before launching their own cases. A successful test case will often set a precedent for cases that follow, and may lead to the defendant settling them rather than fighting a lot of cases that they are likely to lose.

Crehan said it might be a good idea to introduce class actions to Ireland, though any change would need to be accompanied by changes to the rules regarding advertising by lawyers.

However, one way the whole issue might be resolved is by setting up a redress scheme to compensate affected people without having to go to court.

This is quite common where the defendant is a state body, though there are often concerns that the compensation being offered by the redress scheme is less than an affected person might get in court.

Non-compliance

However, it is not just those that have paid making the headlines. Those who have not paid their bill, including government ministers, have also been attracting attention in recent days.

Super junior minister with responsibility for disability Finian McGrath confirmed at the weekend he has not paid his water charges. His Independent Alliance colleague John Halligan, who also joined the government last Friday, hasn’t paid either.

Speaking at a press conference earlier this week, outgoing Labour leader Joan Burton slammed ministers who had not paid their water charges, stating:

How do you expect to be able to ask other people to comply with the law, when you don’t comply with the law yourself?

She said TDs and ministers are “privileged to earn significant salaries, I do think they should pay them”.

Burton said as lawmakers they had an obligation to uphold the law – a sentiment Labour deputy leader Alan Kelly, the former environment minister, echoed.

The new government chief whip Regina Doherty told RTÉ’s News at One that both the public and members of parliament must pay their water bills until the charges are suspended in June.

More: Child benefit tied to school attendance in draft programme for government 

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