Thailand’s National Legislative Assembly has enacted legislation amending the Civil Procedure Code to permit class action litigation that will take effect 240 days after publication in the Government Gazette. Generally speaking, a class action is a type of collective litigation whereby a group (the “class”) which has suffered a common injury brings an action against whoever caused such common injury (there are also defendant class actions where an individual plaintiff brings an action against a group of defendants, and bilateral class actions, whereby a group of plaintiffs bring an action against a group of defendants. The new Thai laws do not appear to provide for these types of class actions, however).
Class actions already have a long history in the U.S. but have more recently been introduced in varying degrees in Canada, the U.K, and other western European countries. Practitioners in these countries will be familiar with many of the provisions of the new law in Thailand
Injuries Subject to Class Action Litigation
Although there is no minimum amount in controversy required under the new law (in contrast to certain U.S. Federal class actions), class actions will not be available for all types of potential legal claims affecting a common group. Instead, class action suits will be limited to injuries resulting from wrongful acts (essentially tort related claims), breaches of contract and the vaguely worded “claims of legal rights” (referred to in the context of environmental, consumer protection, labour, securities and exchange and trade competition laws).
Certification of Class Action by Court
As an initial matter, the plaintiff must obtain certification from the court before proceeding with the actual class action claims. In particular, the plaintiff must show that there is a “group of people” who have the same rights arising from the same fact and principle of law and have the same specific nature of the group, even though the nature of their injury may be different. The plaintiff must also establish to the satisfaction of the court that, among other things, proceeding as ordinary and separate actions would be “troublesome and inconvenient” and that a class action will result in “better justice and efficiency than an ordinary action”. The court will then consider whether or not to effectively certify the class action and permit it to go forward. Defendants may make an interlocutory appeal of any certification by the court.
The Class Action Group
Following certification of the class action by the court, plaintiff will be required to deposit with the court the “class action cost” as determined by the court, and a “class action officer” will be appointed to assist the court with various procedural matters such as group mediation, verification and collection of evidence, recording of witness statements, arrangement for the protection of rights of the parties and group members before and during the trial (Other parts of the new law make reference to an “executing officer”, such as in coordinating payment to group members following a judgment in favor of the plaintiff. It is not clear if the “executing officer” is intended to be the same individual as the “class action officer”). Notification is then provided to the rest of the known group and publication is made in a popular daily newspaper for three consecutive days, as well as via other mass media or other means as the court deems appropriate. Group members will have at least 45 days to withdraw from the class action group.
Proceeding to Judgment
Once the class action has been approved and the other group members have been provided notice, the procedures that follow generally match those of an ordinary civil case, such as a mediation stage followed by submission of evidence, witness hearings, etc.
A judgment in favor of plaintiff shall include compensation for plaintiff’s lawyer together with criteria and method of calculation of payment to each group member in the class action. Plaintiff’s lawyer reward takes priority over payment to plaintiff and group members, and group members are required to submit an application for payment. The plaintiff and plaintiff’s lawyer have sole power to proceed with execution of the judgment.