Is it possible to bring a product liability related group action? If so, please summarise the types of procedure(s) available
Under the Civil Procedure Code (CPC), which sets out the relevant provisions relating to the jurisdiction of courts in civil cases, two or more aggrieved parties have the right to aggregate their claims in a suit against a breaching party. This can be done even if each of their cause of action is separate and distinct. This is based on the fact that in the event that the right to obtain relief arises out of the same act, transaction, or series of acts or transactions, and the causes of action are of such a nature that if separate suits were filed by the aggrieved parties, common questions of law or fact would arise. Additionally, the CPC also allows one or more persons to file a suit against the breaching party on behalf of, or for the benefit of, numerous persons having the same interest in the suit, with the prior permission of the court in which the suit is required to be instituted. In this regard, interest is said to be similar or common when the aggrieved parties have a common grievance against the breaching party and the relief sought is in its nature beneficial to all persons interested in the suit. Hence, it is possible to institute product liability related claims as a group action under contract law and tort law in India.
The CPA also recognises the right of one or more consumers or a voluntary consumer association to file a complaint against a single manufacturer, dealer, distributor, etc. on behalf of, or for the benefit of, numerous consumers having the same interest. The complainants are required to obtain prior permission from the relevant forum for adjudication of disputes under the CPA before instituting such proceedings. Additionally, the CPA provides the district, state and national fora the power to grant relief to several consumers who are unidentifiable. This power is typically exercised in the event of loss or injury being suffered by a large number of consumers as a result of defective goods or services.
No. There are no class action permitted in product liability lawsuits.
If claimants are willing to bring lawsuits collectively, all of them should be co-plaintiffs and satisfy the requirements under the Code of Civil Procedure in Japan. Pursuant to Article 38 of the Code of Civil Procedure, if rights or obligations that are the subject matter of the suits are common to two or more persons or are based on the same factual or statutory cause, these persons may sue or be sued as co-parties. The same shall apply where rights or obligations that are the subject matter of the suits are of the same kind and based on the same kind of causes in fact or by law.
Under consumer law, the Ministry of Commerce and consumer organizations are entitled to file class actions, but generally under Turkish law, no class actions are formed on an opt-in or opt-out basis.
Class action is not currently available under the Product Liability Act. However, as the argument for adopting a class action system for product liability cases is growing stronger, the possibility of future introduction of class action system for product liability cases cannot be ruled out.
There are detailed class action procedures in the Federal Court of Australia, the Supreme Court of Victoria, and the Supreme Court of New South Wales. The legislation in each of these jurisdictions is very similar. There are also older-style representative action procedures available in other state jurisdictions, but these are rarely used. An action can only be commenced in the Federal Court where it attracts federal jurisdiction, for example, if it involves a claim under federal legislation.
Class actions have involved products including weight loss drugs, heart pacemakers, aircraft fuel, motor vehicles, gas, water, tobacco, pharmaceuticals, financial products and a variety of foodstuffs.
Federal, Victorian and New South Wales legislation provides for the commencement of a class action where seven or more persons have a claim against the same person and the claims are in respect of, or arise from, the same, similar or related circumstances and give rise to a substantial common issue of law or fact.
The Competition and Consumer Act 2010 (Cth) (CCA) expressly provides for the institution of proceedings by the government regulator, the ACCC on behalf of those who have suffered or are likely to suffer loss as a result of contraventions of federal legislation.
Group actions, known as a “collective actions”, were first introduced by the Hamon law of 17 March 2014 (n°2014-344), at first limited to the field of consumer law. It was extended, in 2016, to the field of health by Law n°2016-41 of 26 January 2016.
The collective action, created by the Hamon law, aims at obtaining compensation for individual damage(s) suffered by consumers being in the same or a similar situation, the damages having as common origin a failure by the same professional to respect his legal or contractual obligations when selling goods or providing services.
To be eligible for a collective action, one must be considered as a consumer, meaning a natural person entering into an agreement for a purpose which can be regarded as being outside his trade or profession.
However, consumers cannot directly bring a claim themselves. Solely an accredited consumer protection association, representative at national level, can bring a collective claim.
In 2016, the possibility for multiple users of the health system to bring a claim against a person for compensation for bodily injuries related suffered due to a health product was put into place.
Regarding the types of procedures available, the collective action is based on two types of procedures:
- An opt-in procedure which requires each claimant wishing to be part of a group action to expressly manifest an intent to participate in the group action by becoming part of the association having filed the claim;
- A simplified procedure which does not require any active approach on the part of the consumer. The court rules on the liability of the defendant and orders him/her to compensate individually and directly each consumer affected by the defective product.
Yes. The consumers affected by the defect can either reunite and file a single lawsuit together or they can resort to some authorities entitled to promote the consumers’ defence (such as Public Prosecutor Office, Union States, Municipalities, associations, etc.) to file a class action on their behalf.
Group action is available in PRC as a matter of law, but in practice parties can rarely bring group action against a common defendant.
The Civil Procedure Law of the People’s Republic of China allows combination of civil proceedings where the subject matters are the same or of the same type. However, the law also provides that courts have discretion in deciding whether the cases is to be combined or separated, and the courts are generally reluctant to grant such consent.
There exist certain procedures available in England and Wales to group multiple claims together.
- GLO: Claimants may seek a 'group litigation order' (GLO) which is a case management tool enabling multiple claims involving common or related issues of fact or law to be managed together. Each claimant must, however, initiate proceedings separately by issuing its own individual claim form.
- Group actions: One singular representative action can also be brought by or against one or more persons who have the same interest in the claim as the representatives of any other persons who have that interest, as opposed to joining all affected members. Unless the court orders otherwise, the judgment is binding on all those represented in the claim. Such a procedure is similar to the US class action model but these claims are rare in the UK as the courts have typically taken a restrictive approach to the meaning of “same interest”.
The availability of collective redress for consumer claims is a current hot topic in the EU, with the EU having proposed a new directive on representative actions for the protection of the 'collective interests of consumers', including product safety and liability laws, to provide an enhanced right to private action and a potential lowering of the threshold for litigation through representative actions against manufacturers.
German law provides for a kind of a group action called “Musterfeststellungsklage”. This model declaratory action is a new type of action with which the collective legal protection under German law is extended and exists since end of the year 2018. It creates a right of action for qualified institutions, such as consumer associations, to establish the factual or legal prerequisites for claims or legal relationships between a consumer and a trader. Claims arising from product liability are therefore also conceivable. The complaint is subject to additional formal and material admissibility requirements. The substantive and local jurisdiction are specially regulated. Consumers can file their claims in a new action register. Among other things, the filing of a claim binds the findings made in a judgment to an individual action by the filing consumer. The complaint and essential procedural steps as well as the judgment are made public in the complaint register. A settlement can be concluded with effect for the registered consumers.
Virginia does not provide a mechanism for class action claims in state court. Federal Rule of Civil Procedure 23, however, allows federal courts in Virginia to proceed with class actions.
Virginia’s Multi Claim Litigation Act, Va. Code § 8.01-267.1, et seq., provides a mechanism to join, coordinate, consolidate, or transfer multiple individual actions that involve common questions of law or fact and arise out of the same transaction, occurrence or series of transactions or occurrences.
Yes, group action (opt-in) is possible in Denmark. The parties to group action must be identified in a document to the court (eg, a writ of summons) and must then individually join the group action.
The following requirements apply:
- all parties to group action must be identifiable;
- the claims must be identical;
- the claims must be heard together; and
- a group representative must be appointed.
The judgment is binding on all the parties to the group action.
Russian procedural legislation together with the legislation on protection of consumers’ rights only prescribes the following two actions that may be referred to as a sort of group, class or collective action:
- public: certain claims may be brought by the prosecutor, the state supervision body (Rospotrebnadzor, the Federal Service for Supervision of Consumer Rights Protection and Human Welfare) and municipal bodies for protection of rights of the indefinite group of individuals; and
- organisational: certain claims for protection of groups or indefinite group of individuals may be brought by the consumers’ non-governmental organisations (associations or unions).
If the claim is brought by the aforementioned entities, the latter is presumed to have all procedural rights and obligations of the claimant in the course of the civil proceedings. Even if the aforementioned entities do waive the claim, the case will continue to be considered on merits.
The Austrian Law on Civil Procedure does not provide for a true Class-Action style lawsuit (i.e. opt-out-System).
It is however possible to bring a joint lawsuit (i.e. an opt-in system) where either a number of plaintiffs join and file a joint lawsuit or (more relevant in practice) a large number of consumers assign their claims against one or a few defendants to one of Austria’s consumer advocacy groups and this group then files a lawsuit on their behalf (Class Action – Austrian Style).