Justice Enhanced: Framing an Opt‐Out Class Action for England

AuthorRachael Mulheron
Publication Date01 Jul 2007
Justice Enhanced: Framing an Opt-Out Class
Action for E ngla nd
Rachael Mulheron
This article contends that the absence of a n opt-out class action remains a yawning gap within
English civil procedure.Various recent reform proposals havefavouredopt-in procedural vehicles
as the wayforward. However, keyfeatures of these proposals ^ an opt-in approach and the use of a
representative claimant ^ are subject to considerable reservations in jurisprudence from both
England and elsewhere. Following a critique of these features, the article proposes that an
opt-out regime with brakes should be introduced, taking into account both the requirement
for proportionality under the Civil Procedure Rules, and the invaluable lessons provided by the
established Commonwealth statutory class actions regimes.
If it is true that‘procedure[should] be the servant of justicenot its mistress’,
why is
it that potentially millions of litigants in England can still not gain access to a
procedure that has become commonplace in several of the worlds other major
legal systems, in order to test their legal grievances against those who allegedly
commit wrongdoing on a widespread scale? The opt-out class action is the ‘ser-
vant’ presently missing from the English procedural landscape. The forced reli-
ance of litigants upon other procedural multi-party mechanisms ensures that
procedure, and not justice, remains the ‘mistress’.
As some acknowledgment of this unsatisfactory situation, three separate
reformproposals emerged in 2006, all of which have potentially serious rami¢ca-
tions: a Green Paper on DamagesActionsforBreachoftheECAntitrustRules,
a Con-
sultation Paper produced by the Department of Trade and Industry (DTI),
Representative Actions in Consumer Protection Legislation,
and a Consultation Paper
generatedbythePatentOce,RepresentativeActions for the Enforcement of Intellectual
Property Rights.
When coupled with signi¢cant conferences on the subject of
Reader,Department of Law, Queen Mary Universityof London.
1HamelvBru nelle(1975), [1977]1 SCR 147 (SCC) 156 (Pigeon J).
2 Commission of the European Communities, SEC (2005) 1732,19 Dec 2005 (‘EUGreen Paper’).
Consultation closed on 21Apr 2006. No further report has been produced to date.For the Green
Paper, its preceding Worki ng Paper, and related speeches and studies, see: http://ec.europa.eu/
comm/competition/antitrust/actionsdamages/documents.html#greenpaper (last vi sited 11
March 2007). Some points discussed in this article expand upon the author’s submission to
this Green Paper: http://ec.europa.eu/comm/competition/antitrust/others/actions_for_damages/
gp_contributions.html (last vi sited 11March 20 07).
3 12 Jul 2006 (‘DTI’s CP’). Consultation closed on 4 Oct 2006. AConsultation Response is due in
2007. A copy of the Consultation Paper is available at: http://www.dti.gov.uk/consultations/
page30259.html (last visited 11March 2007). Again, some of the points raised in this article are
referred to more brie£y in the author’s submission thereto.
4 26 Sep 2006 (‘Patent O⁄ce CP’).Consultation closed on 18Dec 2006. No Consultation Response
has yet been produced.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(4)MLR 550^580
multi-party procedural reform,
and a group register that re£ects another ¢ve
actions authorised as groupl itigation orders in England andWales during 2006,
it was a busy year.
The most recent reform activity follows upon the heels of an extensive Con-
and Report
on class actions which was produced by the Irish Law
Reform Commission (ILRC) in 2005. Earlier in 2001, the Lord Chancellors
Department (LCD) produced a Consultation
and Response
concerning the
possible introduction of a new representative action for England andWales.The
most notable aspect of both of these particular reformenquiries is that they pro-
duced not one jot of relevant legislation. The LCD preferred to ‘feed into issues
at the European level where there is representative claim elements in legislation
being developed’,
and the ILRC’sproposed DraftRules for multi-party actions
have yet to b e implemente d.
Hence, it will be fascinating to see how proactive
the most recent proposals turn out to be.
At th e generic level (ie, regimes that permit any type of cause of action to be
litigated within their realm), English procedure is presently served by two
sets of provisions: the group litigation order,
and the representative rule,
both of which were included in the Civil Procedure Rules (CPR) in May
Further, a set of situation-speci¢c provisions has been introduced on a
piecemeal basis, which provides for representative actions within certain case
scenarios, whether under domestic legislation
or under European Union
consumer protection directives.
It is especially notable that all of the abovemen-
tioned suggestions for reform post-date the introduction of the GLO and the
5 Civil Justice Council,‘Consumer Redress and Multi-Party Litigation’ LatimerCon ference Cen-
tre,15^16 Nov 2006; Oxford Centre for Socio-Legal Studies,‘Conference on Group Litigation
Oxford,14Dec 2006.
6 See: the list reproduced at: http://www.hmcourts-service.gov.uk/cms/150.htm (last visited 11
March 2007).
7Consultation Paper on Multi-PartyLitigation(Class Actions) (LRC CP 25- 2003), July 2003.
8Multi-PartyLitigation (LRC 76-2005), September 2005.
9RepresentativeClaims: Proposed NewProcedures: ConsultationPaper (February 2001).
10 RepresentativeClaims: Proposed NewProcedures: ConsultationResponse (April 2002).
11 ibid,‘Conclusion’ at [10].
12 A new Order 18A, contained within AppA of the Final Report, Multi-Party Litigation, n 8 above,
13 As noted by the ILRC itself in:Table of Implementationof Commiss ion Reports (Oct 2006),1.
14 As contained within Part 19.III of the Civil Procedure Rules (CPR), in particular, rules 19.10^19.15.
15 As contained within rule19.6 of the CPR.
16 Inserted by the Civil Procedure(Amendment) Rules 2000 (SI 2000/221), rule 9, Sch 2.
17 See, eg,collective claims for damages in respect of antitrust violations,permitted by Competition
Act 19 98, c 41, s 47B, which was inserted by the Enterprise Act 2002, c 40, s 19.The provision is
entitled,‘Claims brought on behalf of consumers’. Relevant subsections permit a‘speci¢ed body’
to institute an action for ‘consumer claims’on behalf of at least two consumers. For recent infor-
mal consultation on this area, see O⁄ce of Fair Trading,PrivateActionsin CompetitionLaw: E¡ective
Redress forConsumersand Business (April 2007). Consultation closes in June 20 07.
18 See: Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the
laws, regulations and administrative provisions of the Member States concerning misleading
advertising, art 4; Council Directive 93/13 of 5 Apr1993 on unfair terms in consumer contracts,
art 7(2); Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on
injunctions for the protectionof consumers’i nterests,art 3; Directive 2005/29/EC of the European
Parliamentand of the Council of 11 May 2005 concerni ng unfair b usiness-to-consumer commer-
cial practices in internal market, art 11.
Rachael Mulheron
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
(2007) 70(4)MLR 550^580

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