Mildred, Mark --- "The Class Action in Common Law Legal Systems - A Comparative Perspective, Rachael Mulheron" [2005] UQLawJl 14; (2005) 24(1) University of Queensland Law Journal 231

• The Class Action in Common Law Legal Systems — A Comparative Perspective, Rachael Mulheron, Hart, Oxford and Portland, Oregon, 2004, lxxvi, pp 535, ISBN 1841134368

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The Class Action in Common Law Legal Systems — A Comparative Perspective, Rachael Mulheron, Hart, Oxford and Portland, Oregon, 2004, lxxvi, pp 535, ISBN 1841134368

MARK MILDRED^[*]

This book is intended to have practical utility for a wide range of professionals including litigators, academics and those charged with law reform. In this aim it convincingly succeeds. The breadth of the analysis informs a compendious survey of the development of class actions in the long-established Rule 23 of the Federal Rules of Civil Procedure (USA), the Federal and nascent State Class Proceeding Rules in Australia, and the mature and novel common law jurisdictions of Canada.

Although those are the focus jurisdictions of the study the author also draws comparisons between them and the civil law class procedures of Quebec and the anti-class action compromise of the English Group Litigation Order. The text is replete with references to the scholarly literature and decided cases alike. What emerges is both the legendary ambit and size of the US literature and, more surprisingly, the volume of judicial precedents from Ontario and Australia. The author selects US materials in deference to the existence of well-respected texts and authors but in relation to the other focus jurisdictions has produced what may be presently seen as a leading work of comparative scholarship.

The book will thus provide a practice guide for those involved in class litigation in any of the focus jurisdictions since the phases of, and problems inherent in, the conduct of class actions are systematically examined. That analysis and the extent of the citations will also make the book an invaluable resource for academics and reformers.

It becomes plain from the decided cases cited that the notion of a class action as a vehicle for vengeful mass tort claims is inaccurate: even within the damages claims under the United States’ FRCP 23(b)(3) such claims are in a clear minority. An early trend of claims in antitrust, securities, utilities and civil rights laws has scarcely slowed and even today environmental claims may provide more class claims than do claims regarding product safety. It may be for this reason that, whilst the author charts the development of, and key issues in, class litigation, the chapter on objectives of class action regimes seems a little anaemic. These objectives need to be seen in the light of dicta such as those referring to the impact of a class action on a corporation as ‘the undue and unnecessary risk of a monumental industry-busting error’ capable of being perpetrated by a single jury decision and describing the effect as ‘blackmail settlements’.^[1]

This consideration is briefly addressed in a section entitled ‘Fear of US-style Litigation’ in the discussion of the failure of the UK (specifically England and Wales) to adopt class actions in favour of an enfeebled system depending almost entirely on the procedural discretion of the judge assigned to the case. The author’s conclusion that it is arguable that the class action deserves greater attention is mild and lacks empirical evaluation of the efficacy of the local procedural device. She might retort, however, on the basis of the citations that class litigation is more argued-over in the literature than decided by judges: the most striking feature of the comparison is the virtual absence of decided cases in the UK. By an irony of timing the in-all-but-name class action introduced into collective claims for damage caused by anti-competitive behaviour as ‘representative claims’ by the Enterprise Act 2002 is omitted. However, the approval of representative bodies (ideological plaintiffs as Mulheron would describe them) by the Department of Trade and Industry has so far taken almost two years and no compensation claims are pending.

What the book lacks (by the very nature of the task the author sets herself) is a socio-legal treatment of the field and an assessment of the balance between costs and benefits in at least the three jurisdictions where class actions are flourishing.

Mulheron takes the reader systematically through the stages of class actions and notes that the Australian approach of abandoning a certification process has largely failed. This is striking since in the other focus jurisdictions it is arguably the main tactical battleground and one can easily understand the enthusiasm of the Australian Law Reform Commission for abandoning it in order to streamline and economise the procedure. This lack of certification requirements sits oddly with the evidence that Australia alone omits deterrence or modification of the defendant’s conduct from the aims of the procedure. One may speculate whether the pressure to impose a certification filter will intensify if defendants begin or continue to feel persecuted.

The main sections deal in great detail with commencement of the class action and its conduct. The author clearly explains the subtly different approaches adopted to fulfilment of the various statutory criteria (or how judges approach discretionary criteria in the absence of statutory guidance) both in the text and with useful summary tables. She also shows the extent to which the criteria may be duplicative or interchangeable: ‘preferability’ clearly includes considerations of manageability, cost/benefit comparison and superiority.

If there is anything to be said for the predilection for fudge contained in the English regime,^[2] it is its freedom from debates on the merits of subjective versus objective class definition. The notion that a definition is defective because it begs the question of proof (for example referring to damage caused by defendant’s breach rather than simply to damage) flies in the face of the need to confine group membership to deter unmeritorious claims and increase manageability of the process.

The section dealing with monetary relief covers the difficult topic of approval by the court of settlements (including aggregate settlements) with clarity and topicality in view of the 2003 amendments of FRCP 23 that regulate the unethical compromise of future claims.^[3] Problems of conflicts between group members and between clients and lawyers, though, could have stood a fuller treatment.

The author correctly identifies funding choices as highly determinative of the success of class action regimes. To an English lawyer burdened with two-way costs-shifting (the ‘loser pays’ rule), the US common fund doctrine (by which, in the event of success, the lawyers fees, generally calculated on a contingency basis, are shared between the class on an equitable basis) seems as simple and desirable as the law practice-busting losing outcome of no payment of fees seems terrifying. The legal-cultural phenomena of jury trials and punitive damages make this approach manageably risky and highly attractive in appropriate cases in the US courts.

British Columbia follows the no-cost line and Australia the unreconstructed costs-shifting rule — with the representative plaintiff shielded only by any intra-group sharing arrangements she can make. Ontario employs a system apparently designed to alleviate the burden on the plaintiffs in cases of public interest and to ensure as full a recovery as possible of the plaintiffs’ attorney’s fees so as to prevent any portion unrecovered from the unsuccessful defendant forming a charge on the damages awarded.^[4] The special funding procedures in place are very helpfully summarised.

In sum, this book does not set itself philosophical targets but will provide an encyclopaedic work of reference for its target readership and for that it is to be welcomed unreservedly.

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^[*] Nottingham Trent University, UK.

^[1] In re Rhone-Poulenc Rorer Inc [1995] USCA7 342; (1995) 51 F 3d 1293 at 1304, 1298 (7^th Circuit).

^[2] Civil Procedure Rules Part 19 III.

^[3] See for example the notorious case of Georgine v Anchem Products Inc (1996) 83 F 610 (3rd Circuit).

^[4] The reviewer was delighted to see the footnoted reference (page 445, n 63) to the decade’s best-titled article about costs: ‘Shift Happens: Pressure on Foreign Attorney Fee Paradigms from Class Actions.’