The proposed final draft of class action of late Justice Somboon Boonpinon’s object is to solve the problem of mass tort or mass injured person. This draft was made from the model rule 23 of the united stated about class action. This class action has to be separate from the normal civil procedure as it has its special characteristic which differs from the normal procedure. The most important and significant feature of class action is draft of section 222/35 said “the decision will bind all member of the class” regardless whether they have involved in the litigation or not.
This is overrule the principle of section 145 of Civil Procedure code; within paragraph 2 said “.. the decision shall not bind third person.. ” Moreover, this draft section 222/35 grants the power to the counsel to enforce the decision on behalf of the plaintiff and the member of the class. The member of the class only has the right to request his share but not to enforce individually. In present procedure, the counsel of the plaintiff will have the authority to do so only his client grants him the power. From the most different feature, I will now summarize the rest of the different feature of the class action draft.
The injured person who will be regard as one member of the class are the person who has the same right arisen from the same fact and same principle of law even they have got different type of injury. (Section 222/1) Still, the court can order to sub-class by different type of injury (Section 222/24) The cases that have been out in the draft to be eligible for class action are the (mass) tort, contract and the dispute arisen from other laws such as environmental law, consumer law labor, security and exchange etc. Section 222/5) The plaintiff may file the request to process the case as the class action case with his statement of claim, in order to do so he must state his reason. (Section 222/6) The court fees in the common issue will be request only from the plaintiff who first brought the suit to court. (Section 222/7 paragraph 2). This is economical for all injured person. In order to grant the class action proceedings, the court must concern both parties’ presentation and the benefit for all parties.
And the class action proceedings would be granted only if the court found the reasonable fact to believe that; – There’s common issue, both fact and law, between the member of the class. – The members of the class are numerous that the normal procedure cannot work effectively or it would be to complicate and inconvenience. – It would bring fairness and efficiency than bringing the suit in normal procedure. – The counsel of the plaintiff has potential enough to guard benefit for all members. He must have time, resources, devotion/fairness and knowledge.
In this point, the draft did not concern who is the first counsel filing the statement of claim, in other words, in deciding who will be the counsel of the plaintiff did not concern the time of filing the statement. (section222/10) This is different from United States (US) practice because US grants the right to submit the request for class action proceedings before filing the statement of claim but our draft was drawn differently as our drafter thought it should be better if we know the whole picture of the case before deciding what type of the case is.
And because the class action case cause a lot of effect to the defendant therefore the draft has given the right for the defendant to file the objection of such order even if he has not yet become the party of the request (the request is a matter between the judge and the plaintiff). In this essence the defendant has the right to file the counter claim against the plaintiff as well. In addition, the court remains its right to cancel class action order if he found it is not giving any effectiveness than doing the case individually. (Section 222/9)
The plaintiff must pay the fees within the time limit otherwise, the court will deemed that he voluntary dismiss the case and will strike the case out of the list. (Section 222/11) The court than must give his most reasonable notice under that circumstance for instance newspapers and must give the time limit for the member to opt-out of the class list. (Section 222/12) The people who opt-out of the class will not be bind by the decision of the court. After the time limit the member can opt-out from the class list only by the approval of the court. Section 222/13) This is significantly different from the Civil Procedure code section 145. However, the people who opt-out of the class list reserve always his right to bring the suit to court. The hearing can be replaced by the affidavit testimony of the witness sign by the person who testify including opinion of the expert witnesses. (Section 222/20 paragraph 2 and 222/23). This helps the problem of time consuming. In my opinion, the affidavit of the witness should have some restriction. For example, it would be valid in condition that the affidavit contents of the witness original/own words.
Because the counsel of the plaintiff has to devote himself, both time and resources of his own, he must have some reward from doing such great benefit to the society. If not, then there may not be an incentive for the lawyer to accept to be the counsel of the plaintiff. The court will have the power to determine the amount of award for the counsel with regard to his effort, resources and knowledge he put in the work. In this light, the counsel shall submit the court of the statement of expenses. However, the ceiling of the award is 30 percent from the amount of damages given by the court. Section 222/37) In enforcing the damages, the court must determine the enforcing rule and condition in his decision. If there is a claim for stay of execution, the court of first instance will have the final word of such order. (Section 222/38) This is, I think, because the court of first instance is the most related to all the fact in the case. In common law system, the appeal court is likely to limit their power in reverse the fact of the court of first instance. He shall reverse only there’s an abuse of discretion of the court of first instance.
Because the class action case concerns a lot of injured person and mostly they would love to be compensating as quick as possible that’s why we should have the leap frog procedure. The draft of section 222/45 then, give right to appeal directly to the Supreme Court in order to save time and get the injured persons compensate as expenditure as it can be. In apply the class action procedure into our system; the judge must concern always his newly active position. Hence, there are some active roles of the judge put into the draft for instance Section 222/20 paragraph 1.
In addition, in awarding damages for the class, the judge must indicate the specific amount of money that would be paid to the plaintiff. (Section 222/36(3)) Still, the problem may arise where the class member did not active their right by not requesting for their damages. The court should have the right to order what to do with the rest amount of damages; may put into society fund etc but in my opinion, the court should primary send the notice or the form for injured person (class member) to fill in.
In this way, if such person did not fill in, then we would know that he has waived his right in the damages. In requesting damages of the class member, the draft has granted the right for other members of the class to file an objection. (Section 222/40). This I find it useful to get rid of the people who did not has any interest in the sum but still filing for the objection. However, I think we have to concern about the time and the complication as well. Therefore, we should put the qualification of the person who will be eligible in filing the objection to the court into the draft.
Nevertheless, in granting the award, the court should put the priority to the court fees before the award for the counsel of the plaintiff. I’m in the opinion that this draft of class action will succeed its rational of the draft as it can help effectiveness in access the civil injured persons to justice because it can protect mass injured person in a single action, it is less time consuming. It will help those who cannot afford themselves in litigation or those minor who can’t bring the suit on their own. It also helps in case where the damages are little but vast of injured person.
Each person damages may exceed the litigation fees but if combine all damages together, it may be worth. As in common issue, only one amount of fees is required so injured person will be compensate and the economic purpose is accomplished. In this regard, when people can file all cases in one action, it tends to reduce the repetition of claim. Nowadays there are more people in the society. And they love/oblige to stay or doing the same thing. That’s why we see more frequently that one action can cause mass injury. As from the rational above, it is time for Thailand to import the class action.