K12.4. Certain matters not provided for
| 397. |
It appears that the CPR group litigation
provisions cover significantly less ground than envisaged in Lord Woolf's Final Report. |
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| 398. |
If the benefits of multi-party litigation are
to be enjoyed, ways must be found to strike acceptable balances among the interests of
group plaintiffs, defendants and the public (whose concern is for the fair and efficient
administration of justice). As Lord Woolf puts it :- |
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"The rationale
behind multi-party actions is that the diminution of the individual rights of claimants
and defendants makes the overall action more practicable and less costly to progress. But
there is a need to ensure that those rights are protected: for defendants by the perceived
fairness of the balance between generic issues and by establishing effective criteria for
entry to the action. For claimants, the court has a more explicit role in ensuring that
their interests are protected: |
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(a) |
in supervising the
activity of lawyers; |
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(b) |
in ensuring the
effective representation of their interests through the appointment of a trustee in
appropriate cases; |
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(c) |
in approving
settlement." (Note 340) |
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| 399. |
The gaps in the existing treatment of GLOs in
the CPR result in some of the key questions mentioned above remaining unanswered.
Conspicuously, no rules appear to have been promulgated in relation to Lord Woolf's
recommendations that :- |
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"* |
The court should have
power to progress the MPS on an "opt-out" or "opt-in" basis, whichever
contributes best to the effective and efficient disposition of the case. (Note 341) |
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* |
The court should be
responsible for determining whether the action has merit and should proceed and the
criteria which must be met by those wishing to join the action. (Note 342) |
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* |
The court has a duty to
protect the interests of claimants, especially those unidentified or unborn. (Note 343) |
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In appropriate cases
the court should appoint a trustee. (Note 344) |
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Multi-party settlements
should be approved by the court especially where the defendant offers a lump sum
settlement. (Note 345) |
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The court should
require an identified and finite group of claimants to have in place from the outset a
constitution including provisions relating to acceptance of settlement." (Note 346) |
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| 400. |
It is recognized that since multi-party
situations require the lawyers to take the initiative in the conduct of proceedings,
measures must be taken to ensure their proper supervision. In the nature of group
litigation, the individual member of the class is likely to be ill equipped to perform
that role. It would be difficult for the court to assume a more proactive role in this
regard while preserving the legal professional privilege enjoyed by the individual
clients. A trustee might therefore be appointed to provide the necessary supervision. |
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| 401. |
While some of the abovementioned concerns may
possibly be met simply by exercising case management, it would be preferable and would
promote consistency if the nature and basis of the court's powers in relation to such
matters were made the subject-matter of rules. |
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| 402. |
In the light of the foregoing discussion, any
decision to adopt a group litigation scheme in Hong Kong probably requires further
investigation of models in other jurisdictions, such as the class action procedures which
have been adopted in Australia by the Federal Court (Note 347) and Victoria. (Note 348) Readers are therefore asked whether a group litigation scheme should in
principle be adopted, but subject to further investigation of appropriate models in other
jurisdictions: Proposal 23. |
Notes
| 340 |
WFR, p 242, §69.
<back> |
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| 341 |
WFR, p 235-6,
§42-§46. <back> |
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| 342 |
WFR, p 237-8, §51-§55
<back> |
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| 343 |
WFR, p 242, §69.
<back> |
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| 344 |
WFR, p 244, §77-§78.
<back> |
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| 345 |
WFR, p 245-246,
§79-§82. <back> |
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| 346 |
WFR, p 248-9. <back> |
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| 347 |
Under the Federal Court
of Australia Act 1976 (Cth). <back> |
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| 348 |
Under its Supreme Court
Act 1986. See generally Bernard C Cairns, Australian Civil Procedure, 4th Ed
(LBC), 337-344. <back> |
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