What do we mean by the ‘Floodgates’ Argument?
To "open the floodgates" in litigation is a phrase used to argue that if a Court were to recognise a cause of action, it may lead to a dramatic increase in litigation or a ‘flood’ of similar claims and, therefore, exposing a Defendant to potentially indeterminate liability.
The floodgates argument can be seen to be invoked in various ways, depending on the effect of that ‘flood’ and indeed, who the ‘flood’ may be against.
The concerns of opening the floodgates operate on a number of levels.
Firstly, there is an administrative or practical judicial concern which is based on the fact that the legal system would be inundated with similar cases, some of which may be meritless in nature. A ‘flood’ of cases could indeed cause an administrative catastrophe within our Court system and, in turn, could serve as a barrier to the wider activities and operations of our properly functioning Court system. The possibility of limitless and disproportionate liability is too high a social risk. Liability, of course, should not and cannot be open ended.
This, in turn, leads to fundamental public policy aspects to the floodgate argument. The assessment of any public policy interests is, of course, vital and such interests need to be protected. It could be said that to allow a flood of cases could indeed have severe financial implications on the State and so, in turn, would be contrary to public policy.
For example, if one were to be successful in a claim against an employer in fear of contracting a disease or illness due to the exposure of chemical agents, then, of course, this would lead to hundreds of thousands of other employees bringing similar claims.
Keane C.J. discussed this risk and the importance of public policy considerations in determining liability in a case of Fletcher v. The Commissioners of Public Works in Ireland, and pointed out that;
“the ground for not extending liability to all forms of economic loss ... is the undesirability of courts extending the range of possible liability in so uncontrolled and indeterminate a manner without any legislative intervention”
There is little doubt that the flood gates / public policy arguments have much merit. However there is a risk that some persons who have suffered significant injuries may go without compensation because of the desire of the courts to man the floodgates against claims with little or no merit.
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.
* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.
 Fletcher v. The Commissioners of Public Works in Ireland, 21 February 2003, at p. 31 of the unreported judgment.