Class Action in UK Law

Where the Plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words are such as would reasonably lead persons acquainted with the Plaintiff to believe that he was the person referred to. There are cases in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which case every member may have a cause of action.

The only rule which in all circumstances is valid is that the answer must depend upon a consideration of the whole Act and the circumstances, including the pre-existing law, in which it was enacted. For instance, if a statutory duty is prescribed by no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is damnified by the breach. For, if it were not so, the statute would be but a pious aspiration.

As respects subsequent additions to the class, mere entry into the market would not give any right of action for passing off; the new entrant must have himself used the descriptive term long enough on the market in connection with his own goods and have traded successfully enough to have built up a goodwill for his business.

It is not disputed that damage is a necessary element in the cause of action of individual members of the class. Given the nature of the cause of action and the market in which the relevant transactions took place there is an inevitable conflict between the claims of different members of the class.

This accords with the concept, as I see it, of the old rule, namely a broad rule of procedural convenience to be exercised with a wide but carefully used discretion.

The distinction between the two classes of case is sometimes expressed by saying that in cases of the former class there is not, while in cases of the latter class there is, just cause or excuse for the action taken.