Professor Rachael Mulheron, BCom, LLB (Hons), LLM (Adv) (UQ), DPhil (Oxon), admitted as a Solicitor of the Supreme Court of Queensland and High Court of Australia
Professor of Law
Tel: +44 (0)20 7882 3959
Rachael Mulheron joined Queen Mary’s Department of Law in 2004. Prior to this, she held academic positions at the Law Schools at Notre Dame (Australia) and Warwick University.
Professor Mulheron teaches both Torts and the Law of Medical Negligence (for the LLB) and (depending upon capacity) Advanced Medical Negligence (for the LLM). She has also lectured annually at Oriel College, University of Oxford, and at the Law Faculty, Catholic University of Lille, France, for several years.
Prior to her academic career, Professor Mulheron practised law in Brisbane, Australia, both in general practice, and later, specialising in the field of building and construction litigation.
Professor Mulheron's primary research interest focuses upon class actions jurisprudence. Her research in this area encompasses, in particular: the design and application of the class action; the comparative analysis of the opt-out regimes in the United States and in the Commonwealth jurisdictions of Australia and Canada; the study of the English opt-in models and of European regimes; and the consideration of the interaction between the drafting and operation of a class action and the substantive law (especially Tort law).
Professor Mulheron has written two books in the area of class actions. The first, The Class Action in Common Law Legal Systems: A Comparative Perspective (2004), incorporated her doctoral thesis undertaken at University of Oxford on class actions, and has been judicially cited in Australia, Canada, South Africa and New Zealand. The second, The Modern Cy-près Doctrine: Applications and Implications (2006), proposes an overarching cy-près definition, and examines all types of dispositions of property where ‘near enough is good enough’ may be contemplated, including for distributions of residual damages from successful class actions. This proposal for cy-près damages distributions has been cited by the Government, in its current consideration of class actions reform for England and Wales, and was also previously influential in the Victorian Law Reform Commission's consideration of class actions residues.
Professor Mulheron undertakes extensive law reform advisory work in the field of class actions. For example, she has advised or assisted the following entities: UK Amnesty International; the Jackson Costs Inquiry; the Government Equalities Office; the Department for Business, Enterprise and Regulatory Reform (and its successor, the Department of Business, Innovation and Skills); the Civil Justice Council of England and Wales; the Hong Kong Law Reform Commission; the Victorian Law Reform Commission; the English Consumers’ Association; a taskforce from Gakushuin University in Tokyo, and the Federal Court of Canada Rules Committee. She is an elected member of the International Association of Procedural Law, a former Executive Member of the Commercial Litigation Association Network (CLAN) in England, a member of the International Bar Association Collective Redress Working Party, a member of the Consultation Board of Practical Law (publishers to the legal profession), and served as National Reporter for the International Association of Procedural Law in 2007, and for the same organization in 2012 for its Moscow conference.
Professor Mulheron undertakes extensive law reform and governmental implementation work in England, in her academic capacity. In May 2009, Professor Mulheron was appointed as a Council Member of the Civil Justice Council of England and Wales, an independent government civil justice advisory and law reform body, for a term of three years, which term was renewed for a further period of three years in 2012. In 2013, she was appointed to the Executive Committee of the Civil Justice Council. In light of this background, Professor Mulheron has been involved in several areas of law reform or policy implementation in the area of civil justice. 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. In 2010, she was appointed as a member of the Working Group for Litigation Funding, which was tasked with preparing a Code for Litigation Funders, and which Code was launched by Lord Neuberger MR in November 2011. In 2011, she 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 2012, she was appointed as a member of the Working Group for the implementation of Damages-based Agreements (contingency fees) for England and Wales.
In addition, Professor Mulheron regularly presents at class actions conferences in England and elsewhere. She was invited to present on class actions-related matters to members of the European Parliament in Brussels in March 2009.
In 2008, Professor Mulheron published two research papers which were commissioned by governmental bodies: Reform of Collective Redress in England and Wales: A Perspective of Need (produced at the request of the Civil Justice Council), and Competition Law Cases under the Opt-out Regimes of Australia, Canada and Portugal (produced at the request of the Department for Business, Enterprise and Regulatory Reform), and was a contributing author to another (especially with respect to the drafting of a potential opt-out class actions regime for England and Wales): Improving Access to Justice Through Collective Actions: Developing a More Efficient and Effective Procedure for Collective Actions: Final Report (A Series of Recommendations to the Lord Chancellor by the Civil Justice Council). For further governmental and NGO reports, please refer to the separate tab, 'Publications'.
Professor Mulheron has also acted as an expert witness and/or provided academic research and opinion for class actions-related litigious matters in England and in Canada.
Apart from her class actions work, Professor Mulheron's other teaching and research interests include Tort Law and Medical Law. As well as various periodical articles in this area, Professor Mulheron has written a book entitled, Medical Negligence: Non-Patient and Third Party Claims (Ashgate Publishing, 2010), and which has been judicially cited in English litigation. Additionally, she is presently writing a Torts text, Principles of Tort Law (Palgrave Macmillan, 2014, forthcoming).
Professor Mulheron 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, Professor Mulheron 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.
- Medical Negligence: Non-Patient and Third Party Claims (Ashgate Publishing, Farnham, 2010), xlix + 419 pp. Download an order form [PDF 394kb]
- The Modern Cy-Pres Doctrine: Applications and Implications (Routledge Cavendish, London, 2006), lxi + 337 pp Download an order form [PDF 61kb]
- The Class Action in Common Law Legal Systems: A Comparative Perspective (Hart Publishing, Oxford, 2004), lxxvii + 535 pp Download an order form [PDF 1275kb]
- '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'  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'  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'  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)
- Victims of Human Rights Abuses by Transnational Companies (commissioned by Oxfam and UK Amnesty Intl, London, 5 Sep 2011), 27 pp
- Costs and Funding of Collective Actions: Realities and Possibilities (commissioned by the European Consumers' Organisation (BEUC), Brussels, Feb 2011), vii + 133 pp
- Draft Rules of Court for Collective Proceedings (co-author, as a member of a working group commissioned by the Ministry of Justice, draft rules released Feb 2010)
- Reform of Collective Redress in England and Wales: A Perspective of Need (Report submitted to the Civil Justice Council of England and Wales, February 2008), ix + 163 pp
- Competition Law Cases under the Opt-out Regimes of Australia, Canada and Portugal (Report submitted to the Department for Business, Enterprise and Regulatory Reform, October 2008), ix + 76 pp
- Improving Access to Justice Through Collective Actions: Developing a More Efficient and Effective Procedure for Collective Actions': Final Report'(A Series of Recommendations to the Lord Chancellor, November 2008), 488 pp (co-author of Report)
Chapters in Books
- '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) [forthcoming] (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
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).