Australia

Australia

In all Australian jurisdictions, a representative proceeding, or class action (as it is more commonly known in Australia) may be commenced by or against any one person as a representative of numerous persons (the minimum number required is generally seven people) who have the same interest in the proceeding and the claims brought give rise to a substantial common issue of law or fact. It is possible to commence a class action against multiple defendants and there is no requirement for every group member to have a claim against every defendant.  

An overarching consideration of the courts in hearing a representative proceeding is whether it involves less delay, expense, and prejudice to the parties than alternative forms of trial. If not, the court may discontinue the proceedings. 

The Federal, New South Wales, Victorian and, most recently, Queensland jurisdictions contain further statutory provisions in relation to representative proceedings, which are arguably more liberal and plaintiff-friendly than other jurisdictions. These jurisdictions allow representative proceedings to be brought where seven or more people have claims which arise out of the same or related circumstances and give rise to a substantial common issue of fact or law. Over 90% of all class actions filed in Australia from 1992-2009 were filed in the Federal Court of Australia. 

When a representative proceeding is commenced, all potential plaintiffs who fall within a class become members of the class, whether they are aware of the claim or not. Members can then opt out of the proceedings before a date set by the court. All class members who do not opt out will be bound by the judgment of the court or by any approved settlement. 

It is important to note that, although some states have yet to formally abolish the law of champerty and maintenance, outside of the US, Australia has one of the most developed class action industries, with a variety of large, class action plaintiff law firms and with many litigation funders having been active in the jurisdiction for over 20 years. This active funding industry has seen a continued increase in the number of class actions being commenced in Australia. 

Last modified 19 Jul 2019

Austria

Austria

In Austria, a class action (Sammelklage) can either be commenced by an association that promotes the interest of a group of persons suffering damages, such as consumers or employees, or by several claimants having the same interest in the proceedings. The same interest does not need to arise out of the same action or transaction, but requires a shared interest in the determination of some question of law or fact. In contrast to the class action system in the US, Austrian claimants must take positive steps to get involved in a class action. The entitled parties assign their claims to an association or another legal person, which asserts the individual claims in a comprehensive claim.

Last modified 19 Jul 2019

Bahrain

Bahrain

In Bahrain, class action proceedings may be permitted, provided the parties all have the same  cause of action. In addition, any person may intervene and join ongoing litigation if that person has an interest that is relevant or related to the case. The intervention can be made either in accordance with the regular procedures for filing a claim before the hearing, or by an oral request to the court during the hearing. Furthermore, the court has the discretion to judge the merits of the intervention and may reject the intervention if it is deemed to be fit and necessary. In practice, the decision regarding whether to carry forward such a case as a single action lies with the competent court. Usually the court chooses to conduct independent trials for each applicant. 

Last modified 19 Jul 2019

Belgium

Belgium

Class actions do exist under Belgian procedural law. Class representatives have to be recognized by the Belgian authorities before they can represent a class of claimants. At the time of writing, only one consumer organization is recognized as a class representative, which means that only this organization can commence class action proceedings.

Last modified 19 Jul 2019

Brazil

Brazil

Federal Law no. 7.347/1985, which was enacted in 1985, provides legal grounds for class actions in Brazil. Despite the fact that class actions are not limited to disputes involving consumer protection, the Brazilian Consumer’s Code contains further supplementary provisions regarding class actions. Brazilian scholars make reference to both laws as the class action system. 

The class action system does not generally relate to large commercial disputes, but to actions brought to protect selected social assets, namely:

  • the environment;
  • consumers;
  • rights of artistic, aesthetic, historic, touristic and landscape value;
  • diffuse and collective rights;
  • economic and urban orders;
  • honor and dignity of racial, ethnic and religious groups; and
  • public and social assets.

Only a limited number of institutions are allowed to bring class actions on behalf of a group. These institutions include:

  • public attorneys;
  • the office of the public defender;
  • federal government, states, and municipalities;
  • autonomous federal government agencies or federal public companies; and
  • specific non-governmental associations.

For a non-governmental association to be able to file a class action, it must be active for more than one year. Non-governmental associations also only have standing to sue in cases involving infringements of rights which are within the scope of their activities. For instance, an association created for protecting the environment will only be able to file a class action to request that a company refrains from polluting a river, but not to protect consumers. 

Further, whenever the respondent is held liable in a class action and is ordered to pay the amounts owed under the judgment, the amount shall not be paid directly to the plaintiff, but to a public fund that is used to protect collective rights.

Last modified 19 Jul 2019

Canada

Canada

In all Canadian jurisdictions, a representative or class proceeding may be commenced by a person as a representative of numerous persons who have a similar interest in the proceeding. A similar interest does not need to arise out of the same action or transaction, but requires a shared interest in the determination of some question of law or fact. 

The action does not proceed as a class action unless and until it is certified on a certification motion (or, in Quebec, an authorization motion). On such a motion, the issue is not whether the class action is likely to succeed on the merits but, rather, whether a class action is an appropriate manner of proceeding. The following are some of the requirements for certification of an action as a class action: 

  • there is an identifiable class of two or more persons;
  • the claims of the class members raise common questions of law or fact;
  • a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
  • there is a representative plaintiff who is well suited to represent the interests of the class. 

In Canadian jurisdictions other than Quebec, parties to a certification motion often file voluminous evidentiary records that may include experts’ reports. Where this is the case, the certification motion may stretch out over several days. In an authorization motion in Quebec, however, the facts alleged by the plaintiff are taken to be true, the motion may only be contested orally, and the defendants require leave of the court to file evidence. For this reason, Quebec is often seen as being a friendly jurisdiction for the institution of a class proceeding. 

A certification motion may proceed in two stages. At the first stage, the court will consider the above factors to determine the threshold issue as to whether the proceeding is appropriate to proceed procedurally as a class action. At the second stage of the certification motion, the court may determine the description of the class and define the common issues. 

If the court certifies the proceeding as a class action it will provide direction as to how class members are to receive notice of the class action. Once they receive notice, class members can choose to opt out of the class action. A class member who opts out of the class will not share in any award or settlement in the class action, and will not be bound by any order made in the class action. Having opted out, they may pursue their claims on an individual basis or simply choose not to pursue them at all. 

Last modified 19 Jul 2019

Chile

Chile

In Chile there is no general civil regulation for class actions. However, a range of procedures are available to enable multiple parties to bring claims. A number of claimants can simply bring a claim together, where the claims can be conveniently disposed of in the same proceedings. Multiple claims arising from common issues of law or fact may be also managed together. 

An exception to this is the Consumer Protection Act, which establishes that consumers may file class actions regarding certain matters such as: retail, transportation, entertainment, certain construction and real estate, electrical services, sports services, education, sanitary services and TV services. 

A consumer class action may be filed by:

  • the Consumer Protection Agency;
  • a consumer’s association; and
  • a group of 50 or more consumers that have suffered the same damage or abuse.

Last modified 14 Jan 2020

China

China

In the PRC, a civil action involving two or more claimants and / or defendants is referred to as collective action rather than class action.

Amendments made to the 1991 Civil Procedure Law (2012 Amendments), effective from January 1, 2013, introduced a provision regarding public interest collective actions, under which an authority or organization prescribed by law may institute a collective action for conduct that pollutes the environment, infringes upon the lawful rights and interests of a large group of consumers or otherwise damages public interest.

More recently, by virtue of the amended Civil Procedure Law, effective from July 1, 2017 (2017 Amendments), the organizations that are entitled to bring public interest collective actions are no longer restricted to those prescribed by the law. The new provision allows the people’s procuratorates (which are the PRC’s prosecution organs) to file a collective action where there is no such organization authorized by law to bring the action or such organization fails to do so.

To initiate a collective action, the following four conditions need to be satisfied:

  • there are two or more claimants or defendants;
  • the subject of the cause of action for each party is the same, or is of the same kind;
  • the court considers that such multi-party claims may be dealt with collectively; and
  • the parties involved consent to such collective action. 

If the number of litigants on one side of a collective action is large, these litigants may be represented by two or no more than five representatives. Pursuant to the SPC Interpretation on Civil Procedure:

  • if there are more than ten litigants, that is considered large;  
  • if the litigants fail to select any representatives, the court may nominate representatives for the litigants or designate representatives at its discretion; and
  • each of the representatives may be represented by one or two attorneys.

If the claimants or defendants under a collective action cannot be fixed at the time the case is filed, potential participants may join the action by registration as follows:

  • the court may issue a public notice, specifying the circumstances of the case and notifying others with similar interests to register with the court;
  • the people’s court has discretion to determine the term of public notice on a case-by-case basis, although this term must not be less than 30 days;
  • potential participants who seek to register with the court should demonstrate their legal relationship with the opposing party and the damages they have suffered. Those failing to do so would not be registered but could still file a separate lawsuit; and
  • the court’s decision on the collective action will bind those who have registered with the court. Subject to the court’s interpretation, such decision may also apply to those litigants who do not register with the court but who bring similar claims within the statutory limitation period.

Last modified 19 Jul 2019

Finland

Finland

It is possible to file a class action in civil cases between a consumer and a company provided that several persons have claims against the same defendant and the claims are based on the same or similar circumstances. Further, it is required that the hearing of a class action claim is conducted expediently in view of:

  • the size of the class;
  • the subject-matter of the claims; and
  • the evidence offered.

A class action can be filed in disputes concerning a defect in consumer goods and interpretation of the terms of contract as well as disputes concerning sales and marketing of investment products and insurances.

However, a class action may only be filed by the Consumer Ombudsman when it has made a decision, and the Consumer Ombudsman will represent the class and acts as a plaintiff. In general, class actions are not common in Finland.

Last modified 19 Jul 2019

France

France

After decades of debates and several aborted bills, class actions were introduced in France in 2014. Initially, they were limited to claims in the consumer law area. France has since created class actions in four other areas: health products, data privacy, environment and discrimination.

Further, a law enacted at the end of 2016 implemented a general framework applicable to class actions. Under the general rules of 2016, class actions can only be brought by specifically authorized associations. Such associations must have been duly registered for at least five years and their statutory purpose must include the defense of the interests that have been harmed.

The proceedings are divided in two phases: (i) a phase to define the class of claimants and the defendant’s liability; and (ii) a phase to determine the amount of compensation to be paid to the individuals who suffered from the targeted wrongdoing. In France, the process works on the basis of a specific opt-in system. This allows consumers to apply to join the group after the decision on the defendant’s liability.

Last modified 19 Jul 2019

Germany

Germany

Despite a number of legislative initiatives in this area, the German legal system currently has no mechanism for bringing US-style class actions, which (i) allow a group of consumers to sue a company in a single legal proceeding brought by one or several plaintiffs; and (ii) result in a judgment or settlement that becomes binding on all members of the group or class.

On November 1, 2018, a new law allowing consumer class actions (referred to as model declaratory proceedings) entered into force in Germany. Unlike in the US, plaintiffs in model declaratory proceedings (i) must be represented by qualifying consumer protection associations; and (ii) still need to file individually for damages following the judgment on the matter because the new representative action only establishes the existence or non-existence of factual or legal conditions (not damages).

Moreover, for the model declaratory proceeding to be admissible:

  • the qualifying consumer protection associations must show that at least ten consumers are affected by the allegations made in the lawsuit; and
  • at least 50 consumers must register their claims in the “to-be-established claims” register of model declaratory proceedings within two months after it has been publically announced that a model declaratory proceeding has been filed. Other consumers may join until the first court date has been set.

Once the model declaratory proceeding is pending, no other action can be filed against the same defendant for the same cause of action.

A declaratory judgment can be appealed within one month of the judgment.

Furthermore, the service of a class action pursued in another jurisdiction on a German defendant can be challenged in the German courts with the argument that the service of a class action violates fundamental principles of the rule of law.

Last modified 19 Jul 2019

Hong Kong, SAR

Hong Kong, SAR

A representative proceeding may be commenced by or against any one person as a representative of numerous persons who have the same interest in the proceeding. A judgment in representative proceedings is enforceable against parties to the proceedings. If a party seeks to enforce the judgment against a person who is not an actual party to the proceedings but who is a member being represented, leave from the court is required.

Other than the representative proceedings as described above, Hong Kong does not have any mechanisms available for collective redress or class action. In 2009, the Law Reform Commission issued a report which recommended a new mechanism for class action. The Department of Justice established a cross-sector working group in 2012, and the working group has been holding regular meetings to study the proposals in the report in detail and consider ways to take the matter forward. However, it has yet to publish any findings or recommendations so far.

Last modified 19 Jul 2019

Hungary

Hungary

There are three instruments in Hungarian law that can be used for enforcement of collective claims:

  • The closest instrument to the class action of common law jurisdictions is what the Code of Civil Procedure calls associated litigation, which, (for the sake of simplicity), we will refer to as class actions. This is a new instrument in Hungarian law, introduced by the new Code of Civil Procedure in 2018 in limited types of cases. Class actions are allowed for consumer, labor and environmental claims.

    A class action may be filed by at least ten plaintiffs. The plaintiffs must put in place a contract setting out the terms of their class action, in which, among other things, they have to nominate a representative plaintiff who appears before the court on behalf of all plaintiffs. The claims, allegations, rights violated and underlying facts have to be identical for all plaintiffs. Multiple class actions are allowed on the same subject. After a class action is filed, the court first decides whether the requirements of a class action are met and thus if the class action is allowed. If the decision is positive, then the class action generally follows the same steps as in normal litigation. Once the claim has been filed, it is only possible to join or leave the class action during the preparatory phase and only with the court’s permission.
  • The Civil Code allows public interest proceedings to be brought to declare standard contractual terms unfair. This may be initiated by the public prosecutor, the government, and certain consumer protection representatives against a company who applied unfair standard terms. The court may declare certain unfair standard contract terms between the company and its consumers null and void. The court’s judgment is effective in respect of all consumers who have contracted under the same unfair term with the company. The court might oblige the company to publish a declaration of its unfair practice in one of the public newspapers.

    Organizations representing businesses are also provided with the right to launch public interest proceedings in limited circumstances. In public interest proceedings, they may only challenge grossly unfair payment standard terms incorporated into business-to-business contracts.
  • The third category is collective redress proceedings. Different sectorial laws give certain government agencies, authorities, the public prosecutor, or NGOs the right to launch collective redress proceedings if they encounter some sort of collective violation in their respective fields. Among others, the Central Bank, the Competition Authority, the Consumer Protection Authority, the Public Utility and Energy Authority and the Equal Treatment Authority have such rights. Collective redress proceedings can either be launched on behalf of aggrieved individuals, for example in consumer protection cases, or in the public interest, for example in environmental or animal welfare cases.

    The applicable substantive law will determine what plaintiffs may claim in these collective redress proceedings. For example, if the exact identity of the aggrieved consumers (meaning the exact specific individuals who suffered harm) cannot be defined, the Consumer Protection Authority or the Competition Authority may only request the court to declare a violation. However, when the specific individuals who suffered harm are defined, these authorities may also sue for damages on behalf of the aggrieved consumers.

Last modified 19 Jul 2019

Italy

Italy

The following three kinds of rights can be protected through a class action:

  • contractual rights of a group of consumers or end-users that are all in the same position with a given company;
  • similar rights that end-users of a given product or service have with a given manufacturer, even in the absence of a direct contractual relationship; and
  • similar rights to restoration of losses suffered by consumers and end-users due to wrong commercial practices or anticompetitive practices.

In Italy, class actions work as an opt-in system. This means that a consumer or an end-user can decide to become a member of the class group without being represented by a lawyer. By becoming a member to the class action, the single consumer waives any right they may have in respect of an individual action against that same respondent.

Last modified 19 Jul 2019

Ireland

Ireland

There is no direct equivalent to US-style class actions in Ireland, and multi-party actions in Ireland generally proceed by way of:

  • Representative actions – where a lead case is brought by a party on behalf of a group with the same interests in the action; and
  • Test cases – where the same circumstances form the grounds of numerous individual claims and the Court elects to stay the majority in favour of deciding a select number. The outcome of these test cases is used to determine the outcome of the remaining cases (except in instances where there are particular unique facts). However each case will usually require its own hearing to determine quantum.

Test cases tend to occur more regularly than representative actions as the latter will generally only arise in circumstances where the broader class have a pre-existing relationship with the lead party.

It is also worth noting the following specific provisions:

  • In the next two years Ireland is due to implement the EU Collective Redress Directive which established a pan-European jurisdiction for consumer class action litigation giving consumers the right to collectively sue for damages (through certain designated bodies referred to as “qualified entities”).
  • The Irish Data Protection Act 2018 (which implements the GDPR) provides limited scope for representative actions whereby an action for breach of data protection rights can be brought on behalf of a data subject by a Not-for-Profit body.

Last modified 27 May 2021

Japan

Japan

There is no litigation structure similar to a class action in Japan.

However, the Act on Special Provisions of Civil Court Procedures for Collective Recovery of Property Damage of Consumers enables consumers to recover damages collectively, in a simple and prompt manner. Claims brought under the Act must arise out of a contract concluded between a consumer and a business operator and in such claims, consumers are not able to claim certain losses, such as secondary losses, losses arising out of lost earnings, damages for personal injury / death, or damages for pain and suffering.

Last modified 19 Jul 2019

Kuwait

Kuwait

In Kuwait, there is no concept of class action suits where one person may commence proceedings as a representative of numerous other persons; however, the civil procedures law of Kuwait does recognize the concept of a party joinder. Any person may join an ongoing litigation if that person has an interest that is relevant or related to the case. A joinder can be made either in accordance with the regular procedures for filing a claim before the hearing or by oral request to the judge during the hearing. Further, the judge has the discretion to join a party to a case if the judge determines it is just or necessary.

Last modified 19 Jul 2019

Mexico

Mexico

Class actions are recognized in the Mexican Constitution as collective actions. Federal courts have exclusive jurisdiction over collective actions and they may be filed in relation to consumer goods and services, financial services, environmental damage and harm caused to consumers by anti-trust practices. Collective actions require that the class is comprised of at least by 30 members and the existence of a common legal cause of action within the class. The resolution of the collective action aims to benefit all members of the class.

The formal claim must be filed before a Federal District Court. The judge will give notice to the defendant within a period of five days, so it has the opportunity to raise objections relating to the claim’s compliance with the relevant mandatory legal requirements. Thereafter, the judge will have ten days to certify that all the formal requirements of the claim are met and will then admit or dismiss the claim. Then, the judge will summon the defendant, who will have 15 days to respond to the claim. After this, there is a conciliation hearing to encourage the parties to settle. If the parties settle, the judge will approve the settlement. In the alternative, the judge will open the evidentiary stage for a period of 60 days in which the parties can offer and prepare the evidence.

Then the judge will notify the parties of date of the final hearing, which will be held no later than 40 days after the conclusion of the evidentiary stage. At the final hearing the parties will present their evidence. The parties will then have a period of ten days to submit their closing statements. The judge will issue the final judgment within 30 days after the final hearing, which concludes the proceedings.

Last modified 19 Jul 2019

Netherlands

Netherlands

At the moment, there is no direct equivalent in the Netherlands of the type of class action seen in the US. However, in the Netherlands, a class action can be brought by a representative entity (either an association or a foundation) that promotes the interest of a group of persons who suffered damages as a result of the same or similar alleged wrongdoing.

The class action lawsuit merely serves to establish liability; in principle no damages are awarded. The declaratory judgment issued in the class action lawsuit can then be used by claimants to (i) claim damages in individual follow on proceedings; or (ii) collectively seek a financial settlement. In the latter sense, parties to a collective settlement may jointly make a request to the Court of Appeal of Amsterdam to declare the financial settlement of a class action binding on all members of a group unless a member chooses to opt out of the settlement. Before declaring a settlement binding, the Court of Appeal of Amsterdam will assesses whether the agreed compensation is reasonable. If the Court of Appeal of Amsterdam considers that the financial settlement is reasonable, it may declare it binding even when (i) claimants or beneficiaries of the class action lawsuit were domiciled in countries other than the Netherlands; (ii) the claim was not based on Dutch law; or (iii) the alleged wrongdoing took place outside the Netherlands. The Dutch class action system is easily accessible and effective and has therefore become increasingly popular.

On March 19, 2019, the Dutch Senate adopted the Act on collective damages in class actions (WAMCA), which will make it even easier to litigate mass damages through the Dutch courts. The new provisions will apply to class actions relating to event(s) on or after November 15, 2016 that are brought after the WAMCA has entered into force. The date for the WAMCA to enter into force is yet to be determined.

In contrast to the current law, it is possible to claim damages in a class action under the WAMCA. Furthermore, the WAMCA introduces enhanced standing and admissibility in terms of governance, representation and funding of the representative authority (the claiming organization). In addition, the class action must have a sufficiently close connection with the Dutch jurisdiction. This connection will exist if:

  • the majority of the persons on behalf of whom the class action is initiated are Dutch residents;
  • the defendant resides in the Netherlands; or
  • the events on which the class action is based occurred in the Netherlands.

The judgment is binding on all Dutch residents that fall within the scope of the claiming organization, with the exception of those that opted out. In principle, the opposite applies to non-Dutch residents: non-Dutch residents can voluntarily opt in to represent their interests by the class action. However, the court can order that the opt-out system applies to a precisely identified group of non-Dutch residents.

Last modified 19 Jul 2019

New Zealand

New Zealand

In New Zealand, it is possible to bring a 'representative' proceeding, or class action, where the proceeding is commenced by (or against) one person as a representative of numerous persons who have the same interest in the subject matter of the proceeding either with the consent of all represented persons, or with a direction from the court. 

Class actions have historically been rare in New Zealand, but are increasing. 

The Law Commission is currently reviewing whether new legislation is required to deal with class actions and litigation funding, as there is currently no defined legal framework for class actions in New Zealand.

Last modified 20 Dec 2019

Norway

Norway

Civil cases may be heard as a class action in Norway. A class action may be brought by or directed against a class if the claims have identical or substantially similar factual and legal bases.

A class action may be brought by a person who has a claim that falls within the scope of the class action. In addition, an action may be brought by an organization, foundation or a public body responsible for advancing specific interests.

In order for the court to approve a claim to be heard as a class action, four requirements must be satisfied:

  • several legal persons have claims or obligations arising out of the same or substantially similar factual and legal bases;
  • the claims can be heard by a court with the same composition and in essence pursuant to the same procedural rules;
  • the claims are most appropriately dealt with by way of a class action; and
  • it is possible to designate a class representative.

If the court approves a claim as a class action, it will at the same time decide on the scope of the claims that may be included in the class action and whether the action will proceed under the opt-in or the opt-out provisions. If the case proceeds under the opt-in alternative, the court will fix a deadline for parties to register for the class action. If the case proceeds under the opt-out alternative, persons who do not wish to participate in the class action may withdraw.

The court will also designate a class representative, who must safeguard the rights and obligations of the class. Any person who can bring a class action, and who is willing, may act as class representative. The class representative has a right and a duty with respect to the costs of the class action, and thus, the representative must be able to bear the class’s potential liability for costs to the opposing party.

If the class members are found liable for any costs towards the class representative, the court must fix a maximum liability at the time the class action is approved, and the court may decide on an advance on costs.

The class must be represented by a lawyer, unless the court grants an exemption.

Last modified 19 Jul 2019

Poland

Poland

Class actions (or group proceedings) are only permissible in the following areas: consumer protection, product liability, liability for the non-performance or improper performance of a contractual obligation, unjust enrichment, and tort cases where the claims arise from the same or a similar set of facts. Regional courts are competent to hear class actions in first instance. The conditions which must be met in order for a class action (so-called group proceedings) to be admitted are as follows:

  • the claims arise from the same or a similar set of facts;
  • the claimants are claiming the same amount;
  • there are at least ten claimants; and
  • the claimants are represented by counsel.

The role of the representative (who holds the sole mandate to institute class action proceedings) can be performed by a member of the group or a local consumer ombudsman. All members of the group must approve the person who will act as the representative. The members of a group in class action proceedings can only be persons who directly express their wish to participate in the proceedings by submitting a declaration when joining the group (before the proceedings are instituted or during the second stage, while the group is being formed). A binding judgment is effective upon all members of the group. However, persons who did not join the group or who have left the group (the admissibility of leaving the group is limited by certain time frames) can individually pursue their claims.

Last modified 19 Jul 2019

Qatar

Qatar

Class actions are not recognized under Qatari law or the Qatari courts procedure.

Last modified 19 Jul 2019

Romania

Romania

Romanian law does not provide for a special procedure for class actions. Litigation with multiple claimants is possible in specific cases, namely when the object of the claim is a common right or the claimants’ rights have a common cause or at least a close connection. In certain special cases, there are persons that have the right to stand as claimant in the name and on behalf of other persons (e.g. trade unions and consumer associations).

If a court is confronted with multiple claimants, the judge can order them to appoint a common representative. If the claimants fail to appoint a common representative, the court can appoint a representative for them.

Last modified 19 Jul 2019

Russia

Russia

In Russia, the concept of class action and the respective procedure varies depending on the court: 

Class actions in state commercial courts 

Although class actions are provided for in the Arbitrazh Procedure Code of the Russian Federation, there are only certain limited circumstances when a class action may be brought in a state commercial court, these being:

  • corporate disputes;
  • disputes related to activities of the securities market professional participants; and
  • claims of persons who are parties to the same legal relationship from which the dispute arose (e.g. disputes related to one land plot, claims of bank account holders to the defaulted bank, etc.).

In the above-mentioned cases, a group of persons may join the claimant acting on behalf of the group. At least five persons must join the claim in order for it to qualify as a class action (Article 225.10(2) of the Arbitrazh Procedure Code of the Russian Federation).

The state authorities (e.g. prosecutors or the federal service for protection of consumer rights) and organizations may bring claims “for the protection of the general public” (rather than in the protection of specific individuals).

However, in practice, the above-mentioned types of actions are not widely used in Russia.

Class actions in courts of general jurisdiction 

From 1 October 2019, individuals will be able to defend their collective interests through class actions in the most common disputes in areas such as consumer protection, labor relations, real estate, shared participation and construction. 

A class action may be brought by a selected representative of a group of at least 20 members with a similar claim or, if permitted by law, by another party (such as a public consumer association). Group members can change their representative, for example, if the representative decides to leave the group. 

Under the new rules a lawsuit will be considered if all of the following are present: 

  • The same respondent
  • Common or similar claims of persons comprising the group
  • Similar factual circumstances
  • The same method of protecting violated rights. 

Class actions fall under the exclusive jurisdiction of courts at the respondent's registered address in order to prevent forum shopping. 

Information on the filing of a class action lawsuit must be published in the media so that new claimants can join the lawsuit.

Last modified 19 Jul 2019

Saudi Arabia

Saudi Arabia

Generally speaking, class actions in Saudi Arabia are only permitted in respect of securities litigation pursued before a quasi-judicial authority that determines securities disputes, the Committee for Resolution of Securities Disputes (the "Committee"). For an applicant to submit a request for a class action, they must meet two requirements:

  • the request shall demonstrate that the suit is identical to other potential or existing disputes "in terms of legal bases, merits and the subject matter of the claim"; and
  • the request shall demonstrate that the decision of the Committee on the subject matter of the claim may have an effect on other potential or existing disputes.

Any interested party can submit a request for a class action to the Committee which shall make a decision as to whether to accept the filing of a class action within 30 days of its submission.

Once a class action application is approved and announced, the class action record will be made available to the public. The Committee certifies the class action once a minimum of 10 requests is reached within a period of 90 days from the announcement of the first request.

Last modified 19 Jul 2019

Spain

Spain

In Spain, a judge will consolidate claims where they refer to: (i) the same judgment; (ii) the same defendant; and (iii) the same facts. Where this is done, only one judgment will be provided. The parties will, however, be able to appeal the consolidated judgment individually.

With regards to the rights and interests of consumers and end-users, the legally constituted associations of such consumers and end-users shall have authority in court to defend:

  • the rights and interests of the associations and their members; and
  • the general interests of consumers and users.

When the aggrieved consumers or end-users can be easily identified, the parties with authority to act as claimants in the proceedings are:

  • the associations of consumers and end-users;
  • the entities legally constituted for the purpose of representing aggrieved consumers or end-users; and
  • the aggrieved groups.

Where the aggrieved consumers cannot be easily identified, the parties with authority to act as claimants in the proceedings are exclusively those associations of consumers and end-users who can legally hold such representation.

Last modified 19 Jul 2019

Sweden

Sweden

In Sweden, class actions are heard by 21 designated District Courts, with at least one located in each county. Class actions based on environmental law are examined by one of the five District Courts that are designated as environmental courts. Disputes between consumers and business operators can be brought as group actions by the Consumer Ombudsman before the National Board for Consumer Disputes.

A class action may be filed by private individuals, organizations (in respect of consumer law or environmental law matters) and public entities such as the Consumer Ombudsman or the Environmental Protection Agency.

The prerequisites for initiating a class action include:

  • that the group can be identified and defined;
  • that the action is based on circumstances that are common for all the members of the group; and
  • that a class action is appropriate.

There is no minimum number of claimants required before a group action can be brought. If the court finds that all of the above conditions are satisfied, the action will proceed as a group action under the Group Proceedings Act. Otherwise, the court will dismiss the action.

Last modified 19 Jul 2019

Thailand

Thailand

As of December 8, 2015, all courts, except the Municipal Courts (i.e. local district courts that handle small claims and minor criminal cases that may be dealt with by fines and penalties), have jurisdiction to hear and determine class action lawsuits.

In order to be certified as a class action, the court must be convinced that the class members carry common rights, facts and base their legal claims on common ground (despite their varying injuries). The court then considers whether the class action should be heard. During this phase, if class members decide that the class action remedy does not best suit their needs, they have a period of 45 days to withdraw from the class.

The court proceeds to appoint a class action officer, who assists the court by attempting mediation, collecting and verifying evidence, meeting with witnesses and taking statements before and during the trial. From a procedural standpoint, the trial portion of class actions is similar to ordinary civil actions with the same processes of mediation, submission of evidence, hearing of witnesses and the delivery of a judgment.

Upon the rendering of a judgment, the claimant (on behalf of the group) may file an appeal. There are no individual appeal rights. Such appeal can be made to the Court of Appeal and then to the Supreme Court. Unlike appeals to the Court of Appeal, there is no automatic right of appeal to the Supreme Court. In order to appeal a decision to the Supreme Court, the applicant must first obtain permission from the Supreme Court to file its appeal.

Last modified 19 Jul 2019

UK - England & Wales UK - England & Wales

UK - England & Wales

There is no direct equivalent in the UK to the US-style class action. However, a range of procedures are available to enable multiple parties to bring claims. A number of claimants can simply bring a claim together, where the claims can be conveniently disposed of in the same proceedings. Multiple claims arising from common issues of law or fact can also be managed together with the court’s permission under a group litigation order (known as GLOs). In some cases, one or more claimants can also represent other claimants with the same interest in the proceeding.

Last modified 19 Jul 2019

UK - Scotland

UK - Scotland

At present there is no formal class action procedure in Scotland, although the Scottish Parliament has recently passed the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, which provides for the creation of such a procedure. Implementation of the Act is expected over the coming year or two. Historically, cases raising similar issues in Scotland have been sisted (frozen) pending the resolution of a test case.

Last modified 19 Jul 2019

United Arab Emirates

United Arab Emirates

The DIFC and ADGM courts do not have any laws or procedures for class action proceedings. However, the DIFC and ADGM courts are empowered to make a Group Litigation Order to manage claims which give rise to common or related issues of fact or law. Such an order can also be sought by application.

Last modified 19 Jul 2019

United States

United States

A putative class action proceeding may be commenced by a named plaintiff as a representative of unnamed parties who have the same interest in the proceeding. The named plaintiff (or class representative) must seek leave of the court to certify the class and proceed as a class action. To obtain class certification, the class representative must produce evidence of a sufficiently numerous class (approximately 40 members is usually sufficient) and demonstrate that common legal issues are shared on a class-wide basis, such that resolution of those issues would materially advance all members’ claims. Class members are not required to demonstrate identical claims or damages, but must show sufficient commonality across the class that individual issues will not make a class proceeding unwieldy. Typically, a motion to certify a class is made following a period of discovery devoted to class issues, such as identification of the class members, common issues, and shared damages theories. An appeal of a class certification decision may be taken if permitted by the appellate court.

As a practical matter, most class actions in the US are brought with the expectation of settlement. Common claims for class treatment include consumer protection, antitrust, securities actions, mass tort, and civil rights matters, in which individual damages are typically small (perhaps as little as a few dollars) but, in the aggregate, create significant liability exposure. Moreover, while individual class members may recover only small amounts, class counsel may end up recovering a large award of attorney’s fees. In any event, class actions typically proceed up until the class certification stage, at which point they are often dismissed or settled.

Since 2005, an increasing number of class actions have been heard in federal court due to the Class Action Fairness Act, which relaxed requirements for bringing state-law class actions in a federal forum. Currently, any class action in which total exposure exceeds USD5 million may be brought in federal court if the defendant and at least one of the class members are citizens of different states.

Once a class is certified, all individuals who satisfy the class definition become members of the class. Those individuals must be notified of their status as class members and given the opportunity to opt out of the class proceedings, or to object to any settlement. All class members who do not opt out will be bound by the judgment of the court or by any approved settlement.

Notable State Variations

California. A denial of class certification is immediately appealable as a matter of right, since such an order effectively ends the litigation. 

Texas. Orders granting or denying class certification are immediately appealable as a matter of right.

Last modified 19 Jul 2019

Australia’s courts operate under the common law legal system. Australia has a federal system of government, with legislative power divided between the federal branch of government and six state and two territory governments (for ease, we refer collectively to the states and territories as the state or states). Australia’s courts are similarly divided into eight separate state jurisdictions and a federal jurisdiction, which each operate on a parallel but independent hierarchy of courts. State and federal courts broadly have jurisdiction over the application of legislation enacted by the state and federal parliaments respectively. The High Court of Australia is the ultimate court of appeal in Australia for all court systems. There are also tribunals created by specific legislation under state and federal jurisdictions.

In each state or territory of Australia, specific legislation imposes a time period before the end of which proceedings must be commenced for a claim or dispute. 

The specific legislation is: 

  • Limitation Act 1985 (ACT)
  • Limitation Act 1981 (NT)
  • Limitation Act 1969 (NSW)
  • Limitation of Actions Act 1974 (QLD)
  • Limitation of Actions Act 1936 (SA)
  • Limitation Act 1974 (TAS)
  • Limitation of Actions Act 1958 (VIC)
  • Limitation Act 2005 (WA) 

These time periods vary from state to state and depend upon the type of claim. A failure to issue proceedings before the relevant time period expires is likely to result in that claim becoming time barred. 

In most Australian states, actions in simple contract or tort must be brought within six years of either the date of breach (contract) or the date on which loss was incurred (tort). 

The limitation period may be extended in some circumstances, for example where someone with legal incapacity (such as a minor or a person of unsound mind) has entered into a contract. Some jurisdictions also permit for the limitation period to be extended at the court’s discretion.

The process of litigation is broadly similar across Australian courts. Proceedings are initiated by a claim or application, which must be filed in the relevant court and served on all parties to the proceeding. Parties will then exchange pleadings (such as statements of claim, defenses, counterclaims, and replies) which define the parameters of the dispute between the parties and the specific issues which are to be proved by each party. Timeframes for the progression of litigation are found in the civil procedure rules applicable in each jurisdiction. Generally, a defense must be filed within 28 days of service of a statement of claim. 

For proceedings in the Federal Court, parties are required to file a genuine steps statement, which outlines the steps taken to make a sincere and genuine attempt to resolve the dispute prior to commencing litigation. Superior courts in the states may also require a party to litigation to provide details of attempts made to resolve a dispute before proceedings were commenced.  

Once the exchange of pleadings is complete, parties will generally undertake the discovery (also known as the disclosure) process, and then go on to prepare their evidence for a final hearing of the dispute. It is common, particularly in complex litigation, for the parties to be obliged to attend court at regular intervals for directions hearings, in which orders are given to manage the conduct and timeframes of the case up until its final hearing. 

Timeframes for each stage of proceedings vary greatly with the complexity and case management style of an individual matter and the specific jurisdiction in which the case is commenced. Each superior court in the states has in place specific practice notes or directions for the conduct of commercial disputes with the aim of ensuring that those commercial disputes are resolved in the most cost-effective and time-efficient manner possible. Generally, across all jurisdictions, parties will have 28 days from receipt of a claim to put on a defense. As noted above, the timetable from that point of time will depend on the nature of the dispute.  

A straightforward commercial contract dispute will normally, court resources permitting, be resolved within 12 months. 

Most state and federal courts require a corporate entity to be represented by a lawyer (which could include a lawyer employed by a company). Some jurisdictions dealing with small claims / employment issues may allow a company to appear by its director. Individuals may appear on their own behalf in most jurisdictions without a lawyer.

In Australia, the discovery process is designed to allow parties to civil litigation to obtain from an opponent all documents relevant to the issues in dispute. Australian courts strictly prohibit “fishing expeditions” through discovery. Discovery is usually undertaken after the close of pleadings (although in some courts in some states this may not be permitted until after evidence is complete) when the points of dispute between the parties have crystallized. Discovery may however be ordered, in limited circumstances, prior to the commencement of proceedings where an applicant is able to satisfy the court that he or she needs to obtain discovery in order to find out whether or not a cause of action exists against a potential defendant.  

The practice of disclosure varies between those jurisdictions which mandate a general right of discovery and those in which the right is more limited. In the Northern Territory and the states of South Australia and Queensland, parties have a mandatory duty of disclosure which is discharged by the exchange of lists or copies of discoverable documents. In Tasmania, Victoria and Western Australia, a party may, by written notice to another party, require that party to make general discovery. In the Federal Court of Australia and New South Wales, the right to discovery is limited and requires an order of the court and will usually be limited to specific categories.  

There have been recent attempts by some of the states’ superior courts to more tightly control the disclosure process. For example, the preparation of disclosure plans (which identify the categories of documents to be disclosed and how they will be disclosed), and the courts ordering that discovery being provided after the exchange of written evidence with a view to limiting the number of documents to be exchanged. 

In the Federal Court and most state courts, discovery can be ordered to be made by non-parties to the dispute where the court is satisfied as to the likelihood of the non-party having relevant documents. Courts in Australia will also generally permit the issuing of subpoenas to produce documents to non-parties to litigation and this process will be more straightforward than seeking non-party disclosure orders. 

Default judgment can be applied for in proceedings in any court where a defendant does not:

  • file a defense within the specified timeframe after a statement of claim has been served; or
  • fails to make an appearance at a hearing.

Once a default judgment is ordered against a defendant, a defendant can, in limited circumstances, seek to challenge the granting of judgment by default. The defendant will need to file an application or motion to set aside the default judgment within a specified period of time and show cause for why (usually lack of notice of the claim or that notice was given of intent to defend but that notice was not brought to the attention of the court which granted the default judgment) the judgment should be set aside.

Judgments of civil courts in Australia can be appealed to a superior court. Civil procedure legislation in each jurisdiction sets out the rules and procedure for appeals. Ordinarily, it will be necessary to seek leave from the superior court to appeal. The Court of Appeal in each state, and the Full Federal Court, are the ultimate courts of appeal for each of those jurisdictions. Cases that emanate from the Federal Circuit Court are appealable to the Federal Court and then the Full Federal Court, whereas matters emanating from a State Magistrates Court are appealable to the Supreme Court and the Court of Appeal. Decisions made by the District Court (County Court in certain states) are appealable to the Supreme Court and decisions of the Supreme Court can be appealed to the state’s Court of Appeal. The High Court of Australia hears appeals from courts of appeal (sometimes referred to as the full court) in all jurisdictions, and has limited original jurisdiction (which predominantly relates to constitutional matters). 

Parties generally, depending on the jurisdiction, have 28 days from the date of judgment or final order, to lodge an appeal in a civil matter to the relevant appeal court. Appeals will generally, because of the limitation of introducing new evidence in most civil appeals, be resolved more quickly than matters at first instance. Most appeals of civil matters will be heard and judgment given within six to eight months from commencement of the appeal. 

All superior Australian courts have a wide power and discretion to grant both interlocutory orders and interlocutory injunctions. An interlocutory application, generally speaking, is an application which seeks any order other than a final judgment. 

As in other jurisdictions, interlocutory injunctions are a species of interlocutory orders. Where those orders are sought on an urgent and temporary basis until a more extended form of relief is sought, they are often referred to as interim orders. 

Interlocutory orders (including interlocutory injunctions) can require a party to undertake or refrain from a particular act, and can be granted before proceedings have commenced, once they are on foot and after judgment has been entered. Applications for these types of orders may be made by self-represented litigants or through legal representation. 

The categories of non-urgent interlocutory orders that an applicant may seek are many and varied and include, by way of example, applications for security for costs, discovery (including preliminary discovery before proceedings have been commenced), the filing of expert evidence or orders for particulars, The evidence required to obtain non-urgent interlocutory orders will turn on the type of orders sought, although at the very least substantive interlocutory applications usually require a sworn affidavit to be filed. 

The kinds of relief that can be sought by way of an urgent interlocutory injunction are equally varied. This is because the orders have the purpose of preserving the status quo until the rights of the parties can be determined finally, and the types of matters that can be heard by the court are vast. Common urgent interlocutory injunctions include applications for the preservation of property, the freezing of assets and applications to search premises to preserve evidence.

An applicant for an interlocutory injunction (either urgent or not) must prove that: 

  • there is a serious question of law to be tried;
  • the balance of convenience favors the granting of the injunction; and
  • an award of damages (at the conclusion of the proceeding) would not be an adequate remedy. 

It is possible for urgent interlocutory injunction applications to be heard by the court ex parte, without the opposing party’s involvement. Any orders given ex parte will generally operate only for a limited period of time until the matter can be brought to a hearing. The duration of any ex parte order will ordinarily be limited to a period terminating on the return date of the summons, which should be as early as practicable (usually not more than a day or two) after the order was made, when the respondent will have the opportunity to be heard. For this reason appeals of ex parte interlocutory injunctions are not usually made to a superior court. The applicant will then bear the onus of satisfying the court that the order should be continued or renewed. A party seeking an interlocutory injunction will ordinarily be obliged to give an undertaking to pay any damages by the defendant suffered as a result of the injunction in the event that the claim for final relief at trial fails. 

The decision to grant an interlocutory injunction can be appealed on an urgent basis to a relevant appeal court. The appeal court will usually list the matter before a single judge to assess the urgency (often the same or the day following the day on which the appeal is lodged) and set a timetable based on the information provided at that first listing. 

Australian state and federal courts can grant interim freezing orders, which restrain a defendant from disposing of property prior to judgment. These orders are a species of interlocutory orders. Such applications may be filed at the Supreme Court or Federal Court. A freezing order is normally obtained ex parte without notice to the respondent, before service of the originating process, because notice or service may prompt the feared dissipation or dealing with assets. A freezing order or an ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets. It would therefore be possible for a freezing order to encompass bank accounts as well as assets such as real property, art, securities or motor vehicles. Such orders would, however, normally allow for access to funds for reasonable expenses, living costs and payments in the ordinary course of a defendant or third party’s business. A court may also order a freezing order against a third party, where it can be established that there is a risk that a judgment or prospective judgment may be unsatisfied as a result of a third party’s power, possession or influence over the assets in question. The power to issue a freezing order is a function of courts’ authority to prevent an abuse of the court process by the frustration of court-ordered remedies. A freezing order will be made only to preserve the status quo for the purpose of resolving a substantive cause of action brought by the plaintiff, and not as a stand-alone remedy.

The criteria for the issue of a freezing order is similar to the ordinary principles for the grant of interim relief, as discussed above, although the potentially serious impact on a defendant’s property rights raises the threshold for the granting of a freezing order. This may be overcome by an undertaking as to damages given by the applicant of the freezing order, where the applicant undertakes to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person affected by the operation of the order. The High Court of Australia described freezing orders as 'a drastic remedy which should not be granted lightly.' Broadly and generally, an applicant must show that: 

  • the applicant has a good arguable case (in the substantive cause of action);
  • the refusal of a freezing order will give rise to a real risk that any judgment pronounced in the action will remain unsatisfied, or that the recovery of any judgment will be prejudiced by reason of the removal by the defendant of assets from the jurisdiction, or their dissipation within it; and
  • the balance of convenience favors the making of the order.

Australian courts have wide discretion to award costs orders against either party to cover the opposing party’s costs of litigation. The general rule is that costs follow the event. This means that the unsuccessful party will be liable to pay the litigation costs of the successful party. The aim of this rule is to achieve a just outcome by shifting the costs burden on to the party which is found to have either unjustifiably brought another party before the court or given another party cause to have recourse to the court to obtain their rights. 

Where each litigant has enjoyed some success in the proceedings, courts may modify the general rule to make costs orders that reflect the litigants’ relative success and failure. Courts may depart from the general rule by requiring a successful party to bear their own costs where there is good cause to do so. Such an outcome may be justified where, for example, a successful plaintiff is awarded only nominal damages, or a party succeeds only due to late and substantial amendments to their case. 

Of particular strategic importance is the rule that generally a court will not award costs to a successful party which has obtained relief no more favorable than had already been offered by his or her opponent in settlement discussions. This rule is designed to encourage the early resolution of litigated disputes. 

Costs orders are subject to a costs assessment process administered by the courts. It is unusual that a party will be able to recover all of its actual legal costs through this process. On a standard assessment, parties may recover approximately 60% to 75% of their actual costs. A higher rate of assessment, on an indemnity basis, may be employed where a party has engaged in unreasonable conduct in the proceeding. 

All courts in Australia will charge fees for commencing civil proceedings (often referred to as a filing fee). Some jurisdictions, particularly superior courts, will also charge additional fees including but not limited to daily hearing fees (calculated by reference to the length of the trial), filing fees for notices of motions/applications and the issuing of subpoenas to third parties. These fees are set by the courts and are published on their websites. They are usually reviewed on a yearly basis. By way of example, the current (2019) rate for commencing proceedings in the Federal Court of Australia is AUD4,045 for corporations and the hearing fee for a five-day trial is AUD19,730 for corporations.

In all Australian jurisdictions, a representative proceeding, or class action (as it is more commonly known in Australia) may be commenced by or against any one person as a representative of numerous persons (the minimum number required is generally seven people) who have the same interest in the proceeding and the claims brought give rise to a substantial common issue of law or fact. It is possible to commence a class action against multiple defendants and there is no requirement for every group member to have a claim against every defendant.  

An overarching consideration of the courts in hearing a representative proceeding is whether it involves less delay, expense, and prejudice to the parties than alternative forms of trial. If not, the court may discontinue the proceedings. 

The Federal, New South Wales, Victorian and, most recently, Queensland jurisdictions contain further statutory provisions in relation to representative proceedings, which are arguably more liberal and plaintiff-friendly than other jurisdictions. These jurisdictions allow representative proceedings to be brought where seven or more people have claims which arise out of the same or related circumstances and give rise to a substantial common issue of fact or law. Over 90% of all class actions filed in Australia from 1992-2009 were filed in the Federal Court of Australia. 

When a representative proceeding is commenced, all potential plaintiffs who fall within a class become members of the class, whether they are aware of the claim or not. Members can then opt out of the proceedings before a date set by the court. All class members who do not opt out will be bound by the judgment of the court or by any approved settlement. 

It is important to note that, although some states have yet to formally abolish the law of champerty and maintenance, outside of the US, Australia has one of the most developed class action industries, with a variety of large, class action plaintiff law firms and with many litigation funders having been active in the jurisdiction for over 20 years. This active funding industry has seen a continued increase in the number of class actions being commenced in Australia. 

Cameron Maclean

Cameron Maclean

Partner
DLA Piper Australia
[email protected]
T +61 8 6467 6013
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