General Report on Common Law Countries, New Trends in Procedure

XIII Direito Processual Comparado 500 (2007)

U of Texas Law, Public Law Research Paper No. 296

49 Pages Posted: 30 Jan 2013

Date Written: 2007


This General Report, as part of the Proceedings of the XIII World Congress of Procedural Law on the topic of new trends in procedural law, gathers the national reports of common law countries relating to new trends in standing and res judicata in collective actions. The national reports include description and analyses from Australia (authored by Dr. Peter Cashman), Canada (authored by Dr. Craig E. Jones), England and Wales (authored by Dr. Rachel Mulheron), and the United States (authored by Prof. Margaret Y.K. Woo). Although every effort was extended to conform the common law reports on standing and res judicata to parallel civil law countries, the reports diverge in coverage and analysis because the civil law appreciation of collective actions is different than that of civil law countries.

Because of conceptual and linguistic differences, some concepts in civil law countries, in relation to collective suits, have no counterparts in common law countries. Similarly, common law countries have developed some rules, procedures, and doctrines, or jurisprudence that is alien to civil law regimes. Hence, parallelism has been preserved where it makes sense and has been omitted where there is no common law analogue to civil law concepts. However, in those instances where common law has analytical concepts not present in civil law systems, these divergences have been noted.

Part I of this report contains a description and summary of the national reports. These national reports summarize the status of collective actions or lawsuits in their respective jurisdictions. As will be seen, the status of collective actions in the common law countries is derivative either of legislative or judicial rulemaking sources. Differences in the treatment of collective actions in common law countries are partially the consequences of the governmental structure of each common law country. Hence, as Australia is a federation comprised of several states, an appreciation of the Australian collective action reflects state-enacted provisions, as well as federal legislation. This is true in Canada, as well, where collective actions are the consequence of legislative initiatives from independent Canadian provinces. In the United Kingdom and Wales, the availability of collective actions again is derivative of the particular jurisdiction. In the United States, collective actions may be pursued in a two-tier court system. The discussion of collective actions for the United States focuses on federal procedure in the federal courts. However, it should be kept in mind that collective actions may be pursued in state courts in the United States, pursuant to local rules.

Part B canvasses the experience of common law countries, each of which has some legislative statutes or judicially-created rules that provides for collective or class action litigation. Common law countries have fairly well-developed systems of collective actions, in comparison to civil law countries where such concepts are relatively recent. Among the common law countries, the United States had perhaps the oldest or most longstanding experience with collective actions, in the form of the American class action. The American class action is a rule-based system for aggregating claims into a representative action. In both Australia and Canada, several (but not all) states and provinces have enacted class legislation which is modeled on the American class action rule, but diverges from the American model in several crucial respects. In addition, the jurisprudence surrounding class actions in Australian states and Canadian provinces has developed independent of American class action jurisprudence. Finally, collective actions in the United Kingdom, Scotland, and Wales are conceptually the most remote from the American class action model.

Part II of this general report then turns to a consideration of the narrower topics in the jurisprudence of collective actions: namely, the current status of concepts of standing and res judicata in class actions or collective actions. This section begins with an introduction that outlines Anglo-American common law concepts of collective rights, in comparison to concepts held by civil law jurisdictions. This section of the report also considers the role of defendant classes in each country’s jurisprudence, as well as concepts of due process and opt-in and opt-out rights.

Keywords: comapartive law, collective actions, Australian class actions, Canadian class actions, United Kingdom group actions, res judicata, standing in class actions

Suggested Citation

Mullenix, Linda S., General Report on Common Law Countries, New Trends in Procedure (2007). XIII Direito Processual Comparado 500 (2007), U of Texas Law, Public Law Research Paper No. 296, Available at SSRN:

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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