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Professor Rachael Mulheron, BCom, LLB (Hons), LLM (Adv) (UQ), DPhil (Oxon)

Rachael

Professor of Tort Law and Civil Justice

Email: r.p.mulheron@qmul.ac.uk
Telephone: +44 (0)20 7882 3959
Room Number: Mile End

Profile

Rachael Mulheron is a Professor of Tort Law and Civil Justice at the Department of Law, Queen Mary University of London, where she has taught since 2004. Prior to this, she held academic positions at the Law Schools at Notre Dame Australia, and Warwick University.

Rachael’s principal fields of academic research concerns Class Actions jurisprudence, Tort law, and Medical Negligence.

Prior to her academic career, Rachael practised law in Brisbane, Australia, both in general practice (as a trainee solicitor), and subsequently, specialising in the field of building and construction litigation.

Law reform research and engagement

Rachael undertakes extensive law reform and governmental implementation work in England, in her academic capacity.Rachael has advised a number of law reform commissions, government departments, and NGOs, on collective redress-related matters, and in numerous areas of tort-related litigation, and her publications have been judicially cited in several jurisdictions, including Australia, Canada, England, New Zealand, Singapore, and South Africa.

In 2009, Rachael was appointed as a member of the Civil Justice Council of England and Wales (CJC), the jurisdiction's civil justice law reform body, and in April 2015, was re-appointed by the Government for a third 3-year term. In 2013, she was appointed to the Executive Committee of the Civil Justice Council.

In December 2014, Rachael was appointed by Lord Dyson, then-Master of the Rolls and Chairman of the CJC, to chair the MOJ/CJC’s Civil Litigation Review Working Party, which is due to report to the Government across a number of issues from 2014–18. The first project of that Working Party was to make recommendations to the Government as to the redrafting of the current legislation governing damages-based agreements, via its report published in August 2015, entitled, ‘The Damages-based Agreements Reform Project: Drafting and Policy Issues’. The second project of the Working Party was to analyse, and recommend changes to the rules governing, concurrent expert evidence in England and Wales (that report was published in July 2016, and is entitled, ‘Concurrent Expert Evidence and “Hot-Tubbing” in English Litigation Since the “Jackson Reforms”’: A Legal and Empirical Analysis'. The next project of the Working Party will be that of ‘before-the-event’ (BTE) insurance, which is expected to take nine months. By virtue of her role as Chair, Rachael has been principal author of the aforementioned reports, drawing together and presenting the views, and recommendations, of the Working Group members.

Rachael regularly participates in other law reform work. For example, in 2014, Rachael was a member of the rules-drafting committee of the Competition Appeal Tribunal, which was tasked with the production of draft rules to implement a new collective proceedings regime for competition law grievances, which will be in force in October 2015. This sectoral regime, passed by the Government in March 2015, represents the first collective actions regime in England which will be capable of catering for opt-out class actions. The implementation of a measured opt-out class action for England and Wales is a matter upon which Rachael had advocated, both in an academic capacity and as a CJC member, for over a decade.

In 2014, Rachael also acted as peer review of the Code of Conduct for Litigation Funders which operates in England and Wales as a voluntary code for third party funders. Earlier, in 2012, Rachael was appointed to the CJC Working Party on Contingency Fees, and to the Law Society Working Party for the development of a model Damages-based Agreement (DBA), and in 2011, was a member of the drafting committee which drafted the aforementioned Code of Conduct for Litigation Funders. Earlier, in 2011, Rachael was appointed as a member of the Working Group on the proposed Defamation Bill, and subsequently, was also a member of the Working Group formed to assist the Government on the implementation of Costs Protection in Defamation and Privacy Claims. In August 2009, she was appointed as a member of the Civil Procedure Rules Drafting Sub-Committee, which was charged with the task of drafting rules of court for a new opt-out collective action regime for England and Wales (and which work laid the foundation for the opt-out reform which eventually occurred in 2015).

A more detailed list of Rachael’s law reform appointments is contained under the ‘Public Engagement’ tab.

Publications

Rachael has approximately 80 publications upon a broad range of legal topics, in several jurisdictions (Australia, Canada, UK, Hong Kong, Europe and New Zealand), with a particular emphasis upon Class Actions jurisprudence, and Tort Law. These are listed, for convenience, under the ‘Publications’ tab.

Rachael’s most recent book is Principles of Tort Law (Cambridge University Press, 2016), which analyses the law of Tort by way of a principles-based approach (the first time that this type of analysis has been undertaken in English Tort Law).

Rachael’s publications have been cited in almost 40 cases, in both appellate and first instance decisions, in a number of jurisdictions: Australia, Canada, England, New Zealand, Singapore, and South Africa, and across a range of areas. A full list of judicial citations is available here [PDF 56KB].

Conferences

Rachael has undertaken over 80 conference presentations over the period, 2005–2016. These have been mainly in the fast-emerging and controversial field of Class Actions, but some presentations have also dealt with Costs and Funding, Torts, or Medical Negligence topics.
These conference presentations have been undertaken in a range of international venues in England, Canada, Singapore, Japan, and Europe, and have been at the invitation of a number of organisations (Government, University, private law firms, research groups, Members of Parliament, and ‘think-tanks’). A full list of invited conference presentations is available here [PDF 76KB].

Teaching

Rachael teaches Tort Law, and Medical Negligence Law, on the Undergraduate LLB programme at Queen Mary. Further details of these subjects are provided under the ‘Teaching’ tab.

Depending upon capacity, Rachael has also taught Advanced Medical Negligence for the LLM.

She also, by invitation, lectured annually at Oriel College, University of Oxford, and at the Law Faculty, Catholic University of Lille, France, for several years.

In 2016, Rachael was appointed as a Fellow of the Higher Education Academy of England and Wales.

In 2017, Rachael was nominated for “Law Lecturer Nomination 2017 [PDF 55KB]” as part of the Law Careers.Net Awards.

Other academic work

Rachael has acted as an expert witness for a class actions-related air cargo cartel matter in Canada.

She has also undertaken various external administrative roles of interest, including: acting as an External Assessor for the Mock RQF for the University of Monash in Melbourne, Australia; and fulfilling the role of National Moot Adjudicator for UK Universities enrolled in the English Speaking Union/Essex Court National Moot Competition.

By way of journal involvement, Rachael acted as General Editor of the Oxford University Commonwealth Law Journal, previously acted as Managing Editor of the University of Notre Dame Australia Law Review, and is currently an Editorial Member of the Civil Justice Quarterly, England's only specialist civil procedure journal.

Research

Publications

For judicial citations of the following published work, please see here [PDF 56KB].

Books

Selected Articles

  • ‘Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act 2015' (2017) Modern Law Review [forthcoming]
  • ‘A Channel Apart: Why the United Kingdom has Departed from the European Commission’s Recommendation on Class Actions’ (2015) 17 Cambridge Yearbook of European Legal Studies 36–65
  • 'Third Party Funding and Class Actions Reform' (2015) 131 Law Review Quarterly 291–320
  • 'England's Unique Approach to the Self-Regulation of Third Party Funding: A Critical Analysis of Recent Developments' (2014) 73 Cambridge LJ 570–97
  • 'The Damages-Based Agreements Regulations 2013: Some conundrums in the "Brave New World" of funding' (2013) 32 Civil Justice Quarterly 241–55
  • 'The Damages-Based Agreements Regulations 2013: A Rocky Road Ahead?' (Practical Law Co, article identifier: 4-523-7972, Feb 2013) 1–7
  • 'The Recognition, and Res Judicata Effect, of a United States Class Actions Judgment in England: A Rebuttal of Vivendi' (2012) 75 Modern Law Review 180-211
  • 'Rewriting the Requirement for a 'Recognized Psychiatric Injury' in Negligence Claims' (2012) 32 Oxford Journal of Legal Studies 1-36
  • 'A Missed Gem of an Opportunity for the Representative Rule' [2012] European Business Law Review 49-60
  • 'Recent Milestones in Class Actions Reform in England: A Critique and a Proposal' (2011) 127 Law Quarterly Rev 288-315
  • 'Opting In, Opting Out, and Closing the Class: Some Dilemmas for England's Class Actions Law-Makers' (2011) 50 Canadian Business LJ 376-408
  • 'Trumping Bolam: A Critical Legal Analysis of Bolitho's "Gloss" ' (2010) 69 Cambridge LJ 609-638
  • 'Emerald Supplies Ltd v British Airways plc: A Century Later, the Ghost of Markt Lives On' [2009] Competition Law Journal 159-179
  • 'The Case for an Opt-out Class Action for European Member States: A Legal and Empirical Analysis' (2009) 15 Columbia Journal of European Law 409-453
  • 'Cy-près Damages Distributions in England: A New Era for Consumer Redress' (2009) 20 European Business Law Review 307-342
  • 'The "Primary Victim" in Psychiatric Illness Claims: Reworking the "Patchwork Quilt"' (2008) 19 King's College Law Journal 81-112
  • 'Third Party Funding of Litigation: A Changing Landscape' (2008) 27 Civil Justice Quarterly 312-341
  • 'Building Blocks and Design Points for an Opt-out Class Action' [2008] Journal of Personal Injury Law 308-325
  • 'Justice Enhanced: Framing an Opt-out Class Action for England' (2007) 70 Modern Law Review 550-580
  • 'A New Framework for Privacy? A Reply to Hello!'(2006) 69 Modern Law Review 679–713
  • 'Some Difficulties with Group Litigation Orders-and Why a Class Action is Superior' (2005) 24 Civil Justice Quarterly 40-68
  • 'From Representative Rule to Class Action: Steps rather than Leaps' (2005) 24 Civil Justice Quarterly 424-449
  • 'Some Comparative Observations On Res Judicata for Canada's Newest Class Action Regime' (2004) 30 Manitoba Law Journal 171-195
  • 'Secondary Victim Psychiatric Illness Claims Revisited' (2003) 14 King's College LJ 213-224
  • 'The Defence of Therapeutic Privilege in Australia' (2003) 11 Journal of Law and Medicine 201-213
  • 'Contributory Negligence: Should Professional Fiduciaries Accept All the Blame?' (2003) 19 Tolley's Journal of Professional Negligence 422-438
  • 'The March of Pure Economic Loss … But to Different Drums' (2003) 7 Canberra Law Review 87-108
  • 'Declarations of Essential Services Under Part IIIA of the Trade Practices Act: A "Discipline" on Access Reform' (2003) 31 University of Western Australia Law Review 226 (co-authored with Brenda Marshall)
  • 'Access to Essential Facilities under Section 36 of the Commerce Act 1986: Lessons from Australian Competition Law' (2003) 9 Canterbury L Rev 248-267 (co-authored with Brenda Marshall) (winner of The Honourable Rex Mason Prize for best New Zealand legal publication published in 2003

Reports for Government and NGOs

Chapters in Books

  • ‘Recent United Kingdom and French Reforms of Class Actions: An Unfinished Journey’ in E Lein et al (eds), Collective Redress in Europe: Why and How? (BIICL, London, 2015), Pt II, 97–115'
  • ‘Duties in Contract and Tort’ in A Grubb, Laing and J McHale (eds), Principles of Medical Law (4th edn, OUP, Oxford, 2015) (updating of 3rd edn chapter), ch 3, [forthcoming]
  • ‘Damages-based Agreements’ in R Pirozzolo (ed), Litigation Funding Handbook (Law Society of England and Wales, London, 2014), ch 7, 105–119
  • 'In Defence of the Requirement for Foreign Class Members to Opt-in to an English Class Action' in D Fairgrieve and E Lein, Extraterritoriality and Collective Redress (OUP, Oxford, 2012), ch 14, 245-266
  • 'The Impetus for Class Actions Reform in England Arising From the Competition Law Sector' in S Wrbka et al (eds), Collective Actions: Enhancing Access to Justice and Reconciling Multilayer Interests? (CUP, Cambridge, 2012), ch 15, 385–412
  • 'Disgruntled Customers and Bank Charges: Class Actions (Reform) Activity' in S Grundmann et al, Financial Services, Financial Crisis and General European Contract Law: Failure and Challenges of Contracting (Wolters Kluwer, The Hague, 2011), ch 11, 279-298
  • 'Costs Shifting, Security for Costs, and Class Actions: Lessons from Elsewhere' in D Dwyer (ed), The Tenth Anniversary of the Civil Procedure Rules (OUP, Oxford, 2010) ch 10, 183-228
  • 'Duties in Contract and Tort' in Grubb, Laing and McHale (ed), Principles of Medical Law (3rd edn, OUP, 2010) ch 3 (undertaking revisions to 2nd edn)
  • 'Medical Negligence, Secondary Victims and Psychiatric Illness: Family Tragedies and Legal Headaches' in Probert (ed), Family Life and the Law (Ashgate, London, 2007), ch 5, 61-76.

PhD Supervision

Professor Mulheron offers postgraduate supervision in the fields of class actions jurisprudence, tort law or medical negligence (although availability of supervision is subject to workload capacity).

Public Engagement

Professor Mulheron's public engagement work centres around law reform research, advisory and published work which, for over a decade, has been principally aimed at three different areas of law:

  • collective (class) actions jurisprudence;
  • the costs and funding of litigation (including third party, and contingency fee, funding); and
  • various areas of Tort law.

Government (and law reform) Appointments

  • April 2015–: re-appointed to the Civil Justice Council for a third 3-year term
  • Nov 2014–: appointed by the Government as Chair of the Civil Litigation Review Working Party tasked with reviewing aspects of the Jackson Costs and Funding reforms, and advising the Ministry of Justice on issues that may require further attention/amendment
  • July 2014–Oct 2014: member of Working Group formed from the Ministry of Justice and the CJC, to review the operation of one-way costs-shifting in certain scenarios
  • January 2014: appointed by the CJC as peer reviewer of the Code of Conduct for Litigation Funders (as revised), prepared by the Association of Litigation Funders (report submitted to the CJC in Jan 2014)
  • May 2009–2015: 3 year appointment by Secretary of State to the Civil Justice Council of England and Wales (CJC), under the chairmanship of the Master of the Rolls (presently Lord Dyson MR), and appointment renewed by invitation for a further 3 years in April 2012
  • December 2012–April 2013: member of Working Group formed from the Ministry of Justice and the CJC, to prepare a report for the implementation of the Leveson Enquiry’s recommendation for ‘Costs Protection for Defamation and Related Claims’
  • December 2012–: member of Working Group formed by the Law Society of England and Wales, and the CJC, to prepare a ‘Model Damages-Based Agreement’ for law firms’ use, to prepare for the introduction of Damages-based Agreements into English law in April 2013 (work is suspended until such time as the Damages-Based Agreement Regulations 2013 are revised)
  • April–October 2012: member of Working Group formed from the Ministry of Justice, CJC, and CPR Committee, to prepare a report to Government on the law and practicalities associated with ‘Damages-based Agreements’, and to make recommendations, prior to their introduction in April 2013
  • June 2011–November 2011: member of Working Group formed from the Ministry of Justice, CJC, and CPR Committee, to prepare a report to Government on, and a draft of, a ‘Code of Conduct for Litigation Funders’, as recommended by the Jackson Costs Enquiry (the final Code was published and in force Nov 2011)
  • December 2010: member of Working Group formed from the Ministry of Justice, CJC, and CPR Committee, to prepare a report to Government on ‘The Defamation Bill 2010'
  • October 2009–March 2010: member of Working Group formed from the Ministry of Justice, CJC, and CPR Committee, to prepare a draft of ‘Rules of Court for Collective Actions’.

Class Actions Law Reform Advisory Work

  • January - May 2014: appointment as academic member of the Competition Appeal Tribunal Collective Actions Working Party (which was responsible for advising on draft CAT Rules of Court for the forthcoming class action for competition law claims)
  • December 2013–: member of Advisory Group for the European Law Institute, regarding the European Commission’s Proposals for Collective Redress reform (published Jun 2013)
  • May 2012–: appointment as member of the Consultancy Board of Practical Law Company (publisher to the legal profession of England and Wales), regarding class actions, third party funding, contingency fee, and tort law expertise
  • October–December 2013: research memos for the Department of Business, Innovations and Skills (BIS), regarding specific drafting points for the attention of Parliamentary Counsel, should a class action be introduced into English law in 2013 (as proposed in the BIS Consultation Document, Private Actions in Competition Law: A Consultation on Options for Reform, April 2012), and which was eventually contained in Schedule 8 of the Consumer Rights Act 2015
  • September 2011–February 2012: research memo on Costs and Funding for Group Actions brought on behalf of victims of Human Rights Abuses by Transnational Companies, at the request of UK Amnesty International and CAFOD
  • February 2011: member of International Bar Association, Class Action Working Group (e.g., which entailed the writing of the Country Report for England and Wales)
  • January–February 2011: European Consumers’ Organisation (BEUC), Brussels (commissioned research project on the options for managing the costs and funding of group actions)
  • December 2010: General Secretariat of the Supreme Court of Japan (Civil Affairs Bureau) (oral discussions, and provision of published materials, regarding class actions)
  • December 2010–: EU Collective Action Working Party of the Civil Justice Council (co-author of CJC response to DG-COMP consultation paper)
  • February 2010–: Dept for Business, Innovation and Skills (discussions and research memos for consultation on opt-out class actions, as and when requested); and similarly for the predecessor Department of Business, Enterprise, and Regulatory Reform (BERR)
  • January–November 2009: Jackson Costs Inquiry (various written and oral assistance, as and when requested)
  • October 2008: Government Equalities Office, England and Wales and Lexicon Research (oral and written contributions, as and when requested)
  • August–October 2008: Dept for Business, Enterprise and Regulatory Reform (funded research report regarding opt-out class actions in competition law)
  • November 2007–9: Hong Kong Law Commission, Class Actions Reform Sub-Committee (written contributions, as and when requested)
  • 2007–9: Civil Justice Council of England and Wales, Comparative Law Sub-Committee on Collective Redress (reports, papers, and other contributions, as and when requested)
  • November 2007: Victorian Law Reform Comm, Civil Justice Enquiry (written research memos, as and when requested)
  • September 2007: National UK Reporter, World Congress of the International Association of Procedural Law (production of Country Report)
  • September 2007–9: The International Bar Association Taskforce on International Procedures and Protocols for Collective Redress (re Guidelines for collective redress) (oral and written contributions, as and when requested)
  • April 2005: Federal Court of Canada Rules Committee (research memo, as requested).

Assistance Given for Court Matters

  • 2008–2014: Engagement as an academic expert witness, regarding the question of the enforceability of North American class action judgments/settlements in England (for McCarthy Tétrault LLP, Toronto, Canada) (affidavits prepared, litigation ongoing in Toronto, Canada).

Judicial Citations of Publications

  • Judicial citations of Professor Mulheron’s published work, in both appellate and first instance decisions, in a number of jurisdictions: Australia, Canada, England, New Zealand, Singapore and South Africa, are noted under the ‘Publications’ tab.

Parliamentary Citations of Published/Research Work

  • House of Lords Hansard, 26 February 2013, col GC128 (Grand Committee, Lord Beecham), regarding Damages-Based Agreements Regulations (‘I am particularly indebted to those who have briefed me, and no doubt other Members of your Lordships’ House and perhaps of this Committee, in relation to these matters, including ... especially, Professor Rachael Mulheron’)
  • House of Lords Hansard, 27 March 2012, col 1313 (Lord McNally), citing: R Mulheron, ‘Costs and Funding for Group Actions brought on behalf of Victims of Human Rights Abuses by Transnational Companies’ (September 2011) (produced at the request of UK Amnesty International and CAFOD, noted above).

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